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Dáil Éireann debate -
Wednesday, 2 May 1990

Vol. 398 No. 2

Industrial Relations Bill, 1989: Committee Stage (Resumed).

Debate resumed on amendment No. 13:
In page 7, lines 13 to 19, to delete the definition of "industrial action" and substitute the following:
" `major industrial action' means any action which affects, or is likely to affect, the terms or conditions, whether express or implied, of a contract and which is taken by any number or body of workers acting in combination or under a common understanding as a means of compelling their employer or to aid other workers in compelling their employer to accept or not to accept terms or conditions of or affecting employment and which has the effect of significantly disrupting the business;".
—(Deputy J. Mitchell.)

When I reported progress we were dealing with the wider issue raised by Deputy Mitchell's amendment to the definition of the term "industrial action", the consequent impact of the use of that term in subsequent sections of the Bill and especially the implications for section 14 which is the section dealing with the requirement for trade unions to bring their rule books into line with this Act and provide expressly for a secret ballot in the event of a strike or industrial action. The net point at the end of that discussion was that it was most unwise of the Minister to seek to include in the Bill the term "industrial action" as defined in, for example, section 14. Far from having the desired effect of minimising the effect of industrial rupture, the imposition on trade union members to go through the process of a secret ballot when often the industrial action involved no more than a minor issue affecting a minority of workers which would not warrant putting in train all of this process for a secret ballot, would only be likely to invite further ruptures of industrial peace.

There is a lot more to be said about it and presumably we will return to it. I would like to allow the Minister to respond to the case that has been made from this side of the House. Maybe this has its origins in the experience of the Civil Service unions and some white collar worker unions but in the real world of manufacturing industry and of the industrial environment outside of the more formal practice in the Civil Service unions, the effect of this inclusion would be to invite fractures of industrial peace rather than prevent them.

The amendment before us has enabled us to discuss what I consider to be an important aspect of this Bill. It gets very much to the core of the Bill because section 14 is really at the core of the Bill. I tabled amendments seeking to change the term "industrial action" to "major industrial action" and added the phrase "which has the effect of significantly disrupting the business."

Deputy Rabbitte highlighted some uncertainty I had about my proposals. On that basis I have indicated my willingness to withdraw my amendments if the Minister would be willing to consider this whole question and come forward on Report Stage with some better definition. While Deputy Rabbitte's comments are compelling, to confine balloting only to striking or to picketing would be a mistake when, in other circumstances, there can be serious industrial initiatives or actions. I hope that between now and Report Stage the Minister will take on board the comments being made by Deputies Rabbitte, Quinn and me and come forward with a more acceptable definition of the phrase "industrial action".

This morning I went further than the definitions because I thought it was important to do that. I will certainly have to look at the points made by the Deputies, well made points. Industrial action involving a strike is one area which is clear enough. Industrial action of other types is another area. Deputies Rabbitte and Quinn have pointed out that because of the way the legislation is phrased at the moment very small industrial rows that might last 20 minutes or even only five minutes are included. I know, a Cheann Comhairle, that we want to proceed through as many sections as we can, but there is a point here and I certainly will look at it, not necessarily to limit it to cases of strike action only because there is more to it than that.

Is the House happy with the assurance given by the Minister?

Let us say we note what the Minister said.

The discussion on the amendments mentioned earlier on has now concluded but in respect of the related amendments, the Deputy in whose name the amendments are, is not prevented from having a question put if he wishes.

Do I take it that if the amendment promised by the Minister for Report Stage in relation to this point does not prove acceptable to this side of the House we are not precluded from tabling other amendments dealing with this matter?

I have to be careful what I say now.

I am prepared to accept the assurance given by the Minister if I can reserve the option myself to table amendments dealing with this on Report Stage.

There should be no difficulty about that, Deputy.

I also agree with what Deputy Mitchell has said and accept the Minister's undertaking in good faith. It is important to make the point that arising out of Deputy Mitchell's amendment the discussion was broadened by the Minister. Deputy Mitchell's amendment related only to the definition in the Bill but the Minister broadened its scope to a whole series of consequences throughout the Bill. There is a distinction between the definition which Deputy Mitchell sought to change and the import of the amendments by Deputy T. O'Sullivan and myself elsewhere in the Bill and especially in section 14. It is a distinct and different point, and I am quite happy to accept the Minister's commitment on it while entering that caveat and reserving my position until Report Stage.

The Deputy is entitled to table Report Stage amendments on any matters arising out of today's debate.

Deputy Mitchell made a point on the major industrial action, which is the keypoint of section 14. Very sensible points have been made on this very important limited area and I will consider them.

You cannot take a simplistic approach to this legislation. A change of one word in a small section can have huge repercussions on another area, and that is why the legislation has to be interpreted as a whole. Everybody knows that in the sequence of discussions on industrial relations that have taken place over the years there was a commitment by all Governments to talk to the social partners and try to achieve balance. There was no intention ever to enact legislation which would favour one side or another. I had to be conscious of that. This Bill has benefits for employers and also for trade unions, and we have to achieve a balance which will help the economy and industrial relations overall. If we lived in a perfect world one could outline in a definition the perfect way to proceed. Indeed I would be bringing forward a different Bill. This point should be borne in mind.

I accept that we have now disposed of the proposal to change the definition of "industrial action". Am I correct in saying that we will not be able to debate the substance of amendment No. 41, which proposes to delete "industrial action"?

I merely remind the House of what it agreed earlier, that we would take all those amendments together for discussion purposes. When we had reached the amendment to which the Deputy referred I thought that some Deputy might indicate that he did not know what had been agreed.

Knowing the Leas-Cheann Comhairle's scrupulous adherence to the rules, perhaps on reflection I was remiss in allowing this matter to be linked. If the Minister had not expanded the argument by referring to debating points which he had available to him with regard to section 14, we would not be discussing the merits of this at this stage. If we accept what the Chair is now saying, which is clearly in accordance with what we have already agreed, I hope that when we come to debate section 14 we will be able to talk extensively about the section without referring to amendment No. 41 and others which are in the names of Deputies T. O'Sullivan and Rabbitte.

The Deputy has also the safeguard in respect of any amendments that if he wishes he can ask that a question be put. The amendment itself will not be open for discussion but it can be referred to on the section.

Amendment, by leave, withdrawn.
Section 8, as amended, agreed to.

Amendment No. 14 is in the name of Deputy Rabbitte. Amendments Nos. 15 and 16 are alternatives and amendments Nos. 17 and 18 are related. Therefore for the purposes of debate it is proposed that we take amendment Nos. 14 to 18, inclusive, together. Is that agreed? Agreed.

I move amendment No. 14:

In page 7, lines 30 to 36, to delete subsection (2).

Section 9 (1) does no more than re-enact section 2 of the Trade Union Act, 1941, which confined immunities associated with trade disputes other than for conspiracy to authorised trade unions, their members and officials. My problem is with section 9 (2). I am dumbfounded that this has attracted so little scrutiny. This is one of the most important issues in this Bill and I believe that the significance of it has been misread, misunderstood and glossed over. First, we have been discussing the very important issue of what constitutes industrial action. Second, under section 11 there is the question of secondary picketing, which is critical to this Bill. Third, there is the question of what is contained in section 9 (2). In my view section 9 (2) is probably the most serious point of the three priorities I have mentioned.

I ask Deputies, especially the Opposition spokespersons, to look again at the construction of section 9 (2). I suspect that they took it, as I did initially, that this was designed to deal with what I call the "mad hatter phenomenon" of the one-man picket who for a grievance, real or imagined, places a picket which stops the entire operation at Dublin port, or somebody like the very colourful lady who waves her crucifix in the air outside Clery's. This does very little harm to anyone and adds colour to the city. However if she were to transfer her picket to Dublin port and other workers were not to pass her, this would be a different matter. I thought that this subsection referred to that and I believe many others think it refers to that and that it is a good thing that we are putting an end to that phenomenon which, I repeat, is the spectre of the sixties haunting this legislation. I do not believe that phenomenon of the sixties has been repeated in recent industrial history, as far as I can recall, but that is not only what this section says. Section 9 (2) states that where in relation to the employment etc. ..... of one individual worker, there are procedures which are normally availed of in the employment concerned, or agreed procedures for the resolution of disputes, including dismissals, sections 10, 11 and 12 shall not apply until these procedures have been resorted to and exhausted. What that means in layman's language is that the immunities conferred by sections 10, 11 and 12 do not apply in the event of one individual worker being dismissed.

I have dealt with a myriad of disputes where the cause was the dismissal of one worker, most often the worker who was instrumental in trying to organise the plant, employment or enterprise and as a result of putting his or her head above the parapet and trying to form a trade union — to which workers have a constitutional right — he or she was dismissed. There are a myriad of other examples but I am just setting out this one. I am sure the House knows that this is a growing phenomenon.

It is only a short ten years since the Industrial Development Authority were telling foreign companies coming into this economy that their workers would be expected to join a trade union. At that time a very high percentage of the total workforce in Ireland were members of trade unions and the IDA asked these companies from the United States, Japan and elsewhere, where there is a different culture from ours, to accept that. That position has completely changed. The IDA no longer do that but I am not quibbling about that because that is not the IDA's job; it is the job of the trade union movement. The number of anti-union employers and non-trade union establishments is growing by the week. Some of these employers are hostile to the concept of becoming organised into a trade union and very often the person who tries to organise it is dismissed as a result.

You, a Leas-Cheann Comhairle, may well share the vagueness but good intentions of some of the contributors to the Second Stage debate on this Bill, when all kinds of speeches were made by Deputies who were full of good intentions but, with respect, they do not know a great deal about industrial relations. They may ask what is the problem, and if one goes through certain procedures, if that will not solve the problem. In effect, this provision removes the sanction of strike action in the case of a dismissal.

Employers may no longer fear strike action in the case of a dismissal because by the time the individual worker who is acting on behalf of his colleagues goes through all these procedures, the prospect of a trade dispute in the real world is nil. Many good trade unionists and shop stewards will be penalised as a result of this section.

The Minister referred earlier to The Workers' Party Bill on part-time workers currently before the House. He will recall that in my introduction of that Bill I instanced a number of contracts, to which Deputy Barnes adverted earlier and in her contribution to that Bill that set down procedures referred to in this section. If we take the case of 7-Eleven — I did not name it in the House when introducing the Bill but it has been named since at the shop workers' IDATU conference — young workers coming into employment are asked to sign a contract which is unbelievable and indescribable. Nobody in this House, the Minister included, will deny that. There are procedures there which, according to the owner of that establishment, are inherited from the United States. The young people who so desperately need work agree to sign the contract. That contract contains a whole series of procedures in terms of the kind of dismissal that I have postulated. It is beyond doubt that for any person dismissed, who would have to observe those procedures in section 9 (2), the sanction of strike action does not apply. Effectively the provision removes that sanction. That is a great shame.

I have no objection to dealing effectively with the mad-hatter type picket but I would remind the Minister and Deputy Mitchell, both of whom have adverted to their experience in the trade union movement, that we have always operated on the basis that an injury to one is an injury to all. That is still a cardinal principle notwithstanding changing fashions in the trade union movement. Where somebody seeks to organise an employment and gets the bullet as a result of doing so, his colleagues, in showing solidarity and in attempting to retain him or her in employment, go through the normal procedure with a view ultimately — it seldom comes to that — of taking strike action to protect that person. I cannot believe this could have been the Minister's intention.

I can see how attractive this is to the FIE. It is one of the reasons for their acquiescence to this Bill. This is one of the most serious anti-union measures I have seen in recent years. It entirely changes the balance of power as between worker and employer. The worker has no sanction but to withdraw his labour, and that sanction is being withdrawn in this section. I would ask the Minister to reconsider this matter and to take on board my amendment. Otherwise this section will be inoperable in reality.

I do not agree with Deputy Rabbitte. I could go through the procedures that one worker can adopt within his union at great length. When all the procedures have been exhausted, whatever action is necessary can take place in the normal way. I do not understand some of the points made by the Deputy. He commented at length on the provision in section 9 (2). This subsection is intended to remove legal protection in disputes concerning one worker, as well as industrial action by one worker, where the procedures normally availed of in the employment concerned have not been resorted to and exhausted.

The provisions would apply to dismissal as well as to other grievances. Where there are no agreed procedures or where procedures are not normally availed of, there will be no loss of immunity for one person strikes. If there are no procedures that govern the rights of the worker, the worker does not have to concern himself even though it is only a one worker dispute. Where procedures have been exhausted and no resolution to the dispute found, the strike can be organised on behalf of the single worker provided the majority of those expected to be called on to strike vote in favour of action and provided one week's notice of the action is given to the employer.

Some of the things we spoke about in regard to the actions of the sixties have not happened. I agree with Deputy Rabbitte there but I am afraid his suggestion cannot be applied. It would be grossly irresponsible to this House not to do something to try to deal with this issue. What we are doing is providing that where there are no procedures a worker can go ahead and he is covered by immunities, that if he exhausts the procedures and gets nowhere he can go ahead and that if he is a member of a union his union committee or his executive committee can sanction a strike in the normal way. The power of the picket is graphically illustrated in the ability of a single worker to place a picket without warning and to have such a picket respected by other workers. That is going over the top. I respect pickets. I have been involved in both sides in this respect but in the case of, say, unfair dismissals, there are many other procedures which normally trade unions resort to, be it the Employment Appeals Tribunal or the Labour Court conciliation service so one worker does not have to resort to a picket without first going through certain procedures. Incidents of this kind can cause grave damage to the country.

In my amendment to this section, after consultation with both sides, a change is proposed. It was in further consideration of the subsection that the phrase "procedures which are normally availed of in the employment" could be open to different interpretations and could lead to some confusion and perhaps a disadvantage to some individual worker. I am therefore putting forward the amendment which comes up in this group of amendments. It is a much tighter amendment.

I have listened carefully to the Minister and also to Deputy Rabbitte. I am not sure that I accept the concern Deputy Rabbitte has put on the record. As I understand subsection (2), the intent is to confine it to the Madhatter syndrome, so to speak. In the amendment in the name of Deputy Toddy O'Sullivan we were trying to establish that the reference to procedures would only refer to procedures which were provided as a collective agreement on such grievances and that there were procedures that would exist. That covers one area of concern. The Minister's amendment is an improvement on the original wording in section 9 (2). It is a broader definition than the one normally availed of which could be construed tightly in a particular circumstance. My understanding of this is that in the Madhatter situation, if there are procedures they have to be exhausted before any industrial action in the form of a picket or whatever by that individual worker would enjoy the protections of sections 10, 11 and 12. However, the amendments will refine that.

I further understand, and this might be at the base of Deputy Rabbitte's concern, that where there are no procedures in a particular place of employment either by custom or by practice or in any written form, the provisions of section 9 (2) will not prevail and that, therefore, the protections of sections 10, 11 and 12 will not be suspended or abrogated. Deputy Rabbitte is correct to focus attention on this issue. If procedures are formally written out they have to be adhered to. If precipative action is taken in advance of those procedures being properly exhausted, the person who does so cannot expect the protection of sections 10, 11 and 12. Likewise, if there is a practice of procedures or a custom they have to be availed of. If, for example, in a new employment where there are no procedures, no practice, no custom or no tradition, and somebody is trying to do exactly what Deputy Rabbitte referred to, organise a union in an area, and is summarily dismissed as a consequence, the protection of sections 10, 11 and 12 will prevail and can be invoked by the individual workers and their union. That is leaving aside the rights of redress that person may have under the unfair dismissals legislation; if they were there for more than two years they would have protection in that context though we are not necessarily talking about what may happen to them but about the bona fides of a strike that may be precipatated by such a dismissal. That is my interpretation of what that section is about and perhaps the Minister would avail of the opportunity to respond or confirm that that is correct.

Yes, that is what it is about. The section applies only where agreed procedures are used through custom or are in practice. If there are no procedures the section does not apply. The immunities would reapply where the procedures had been exhausted. If the employer does not make an attempt to resolve the issue the section does not operate either. The section is not designed to get at a worker unfairly in an individual case where he does not want to follow any procedures.

In any other section of the Bill I would be loath to delay its progress through the House but this is a major issue and it has not been responded to. I would ask my colleagues to reflect again on the argument I am trying to advance. Essentially, the Minister has responded by making two points. First, if there are no procedures there is no problem, one can go ahead and ballot. Second, if the procedures are exhausted one can go ahead and strike. There are fatal flaws in that response. No employer is so naive as to think that, after the passing of this legislation, he will have no procedures. The employers who have the most lengthy, tedious convoluted procedures and steps that one must go through are the anti-union employers, employers who set out deliberately to put all these steps in the way. I instanced the case of 7-Eleven. I have the details here but out of a wish not to inflict them again on the House I will not read them into the record again. This is typical of the kind of specimen contract that is being drawn up and which young workers in particular are expected to sign when they come into employment. What is happening now in Irish industrial relations is what has already happened in Britain and is happening in the labour relations agency in Northern Ireland, more lawyers are intruding into the practice of industrial relations, more companies are retaining lawyers for advice, it is the handiest nixer one could have. If ever the situation presents itself, if the people of Dublin South-West ever reject me, I may have to set up some kind of consultancy to protect my earnings. In that situation any lawyer worth his salt can draft a set of procedures which means that the sanction of strike is effectively withdrawn in the case of a dismissal that I have put forward here. It is not really a response to my argument to say that if there are no procedures there is no worry. Of course there will be procedures. There are procedures already, and any company or employer who, after the enactment of this legislation does not immediately go back to the drawing board and draw up procedures is a fool, and I do not think many employers are foolish. Therefore, unfortunately, the shop steward who raises his or her head is victimised.

The second half of the response is: "What is the problem? If the procedures are exhausted can he not go on strike?" In reality, in the case I am putting forward, the period that would elapse between the dismissal and the procedures being exhausted could be anything from three months to seven months, and in industrial life it is simply not on — as I know as a dismissed worker — to go back seven months later and ask for the support of your colleagues. It just does not work in practice and, with all due respect, the Minister's response does not deal with this problem.

Deputy Quinn introduced the Unfair Dismissals Act, and there are two points to note. The first he pointed out himself, that is, that one has to be in employment for two years before having the protection of the Unfair Dismissals Act. Secondly, the data are there, and any assessment of the performance of the Employment Appeals Tribunal shows that even where the tribunal are satisfied that the worker was dismissed unfairly, reinstatement is seldom recommended. Lawyers have now advanced the principle of irretrievable breakdown of relationships, and recommend damages rather than reinstatement. Again, the Employment Appeals Tribunal do not provide a way out in the circumstances I am talking about.

The trade union movement will rue the day this section is enacted because effectively it will mean that the person who will try to do the job on the shop floor for the trade union movement will find himself or herself without a job, with no thanks, and no effective capability on the part of the trade union to respond to protect that person's employment. For that reason I ask the Minister to rethink his position.

In a number of cases with which Deputy Rabbitte would be more familiar than most of us, it is almost more difficult for trade unionists on the ground to get anywhere when there are no procedures. At least where you have procedures you can start playing the match on the pitch because you know where the pitch is and what you are trying to resolve. However, I am not too sure that we will rue the day when we will have a move towards written procedures. In the vast majority of places it will be a big advancement to have written procedures which a trade union can negotiate because they will be binding on the employer as well as on the employee.

I understand a little more clearly from Deputy Rabbitte's second contribution that really we are talking about firms, companies or employers who will have nothing to do with unions in the first place and will be out to breach all the normal practices. Even in the case the Deputy cited in this House during the debate on the Protection of Part-Time Workers (Employment) Bill, the workers on the ground will not, as he said, get anywhere. These firms have used those written procedures to their advantage and are obviously winning concessions in that regard. The example cited by the Deputy has proved that by having written procedures you can advance the position of the workers, and I hope that is the way we will go. I acknowledge that if an employer will not have written procedures, or will have written procedures but will not give any input to his workers, you can have difficulties regardless of what is in legislation. Whatever Acts we passed, and even if we had an Act just about that person, we would not resolve the abuses of such an employer. We have to look in a fair way at an area that was, is and will be creating difficulties. That fair way involves allowing immunities in a case where procedures, customs and practice are followed, and where they are exhausted the immunities will apply. We must try to force people to adopt procedures and to follow them. In time that will prove to be useful.

The deletion of this paragraph as proposed by Deputy Rabbitte's amendment would undermine greatly one of the central purposes of the Bill which is to take any immunities away from wildcat pickets. I have listened carefully to Deputy Rabbitte and as I see it his amendment is throwing out the baby with the bathwater. If he has some of the concerns he has expressed, it might have been better had he put down an amendment dealing with the circumstances where wildcat strikes would not be covered rather than dealing with it altogether. It would be too fundamental a change to the purpose of the Bill to be supported. Perhaps he will consider not pressing the point now but coming forward with an amendment on Report Stage to deal with some of his concerns.

On the latter point, I tried very hard, with expert assistance, to provide for wildcat strikes without impunging the rights of the kind of shop steward and worker I am talking about here but I was unsuccessful. I note that Deputy Toddy O'Sullivan's amendment No. 16 provides for one aspect of what I am trying to do. I think the Minister misunderstood the point I am making. It is not that written procedures represent an advance — maybe in the old days many agreements were not written down, but merely because they are written down, to presume they are an advance or that they order the conduct of industrial relations is not wise. The procedures I am taking about are unilaterally constructed. That is the point. The young worker going into 7-Eleven or wherever is asked to sign a document that has these provisions and procedures in it devised by the employer, tailored to meet the employer's needs and there is no input by any trade union. They are not procedures that are worked out between a union and an employer. I would have a lot less concern in such a situation. As far as I am concerned it is fair game, let the union deal with the problem. We know the extent of this phenomenon throughout the economy and it is growing.

For example, one of my last assignments before I left the Irish Transport and General Workers' Union was to go to Killorglin to talk to an American insurance company who were considering setting up there. The best I could get was that two years after they were set up they would talk to me again. They told me they were not unionised back in Minneapolis and they could not contemplate the business of white collar workers in the electronics field joining a trade union. It was beyond them and I had to accept that the priority of providing employment in Killorglin as compared to my saying that the employees must join the union now, had to win out. Sooner or later the normal dynamic will look after itself. If anybody raised a head there and was sacked under section 9 (2) the sanction of strike on the part of colleagues would effectively, be withdrawn. That is regrettable. While I failed to draft a suitable amendment I am sure the Minister, with the expertise available to him, will not fail. I regard this as one of the most important issues in the Bill. I am not in disagreement with Deputy Mitchell about the wildcat phenomenon and I am open to any advice to provide for it. However, I will not agree to anything that dilutes the rights of workers to form a trade union. That is the net effect of the provision in the Bill and I must continue to press my point.

There are other amendments on this issue. I have not heard the Minister refute authoratively what Deputy Rabbitte has said. We need to tease out the issue because we are talking about taking away rights from a certain category of workers, rights which they have enjoyed since 1906. We are now about to delimit the exercise of those rights and the protection of them in a certain area. We all agree on what the proper circumstances should be but Deputy Rabbitte's concern is that the spillover effect of this provision, as interpreted by him, could go much further and would cause problems.

I should like to tease out this issue. Let us take the case of a person who signs an employment contract along the lines suggested by Deputy Rabbitte and, after a period of time, is dissatisfied with the terms of engagement or with the fact that he or she cannot organise a union. It is my understanding that under a subsidiary contract one cannot sign away the basic rights one enjoys under the Constitution. One of the rights a person enjoys under the Constitution is the right to free association and the right to join a trade union. Therefore, any contract between an employer and an employee that would inter alia prevent an employee organising or trying to bring a trade union into a business could be deemed to be unconstitutional. Will the Minister tell me if that general provision applies specifically in the case of a concern like that referred to by Deputy Rabbitte in Killorglin?

Let us take the case of a person who is summarily dismissed for breaching the conditions of a contract and it is known to fellow workers that he or she was trying to improve the working conditions in the place of employment. The terms of the contract between the employee and the employer may exclude such activities. The workers in that plant may hold a meeting and decide by a majority to go on strike in support of that colleague and I should like to know if that strike will have the protection of sections 10, 11 and 12. If it does not we are embarking on a very dangerous road because that is not how I interpreted those sections.

A dismissal may be construed by other workers as being unfair or unreasonable and they may decide, after due deliberation and a ballot, to go on strike. They may do so on the basis that what happened to that worker could have happened to one of them. That strike may be sanctioned by a trade union and I should like to know if the Minister is saying that the provisions of section 10, 11 and 12 will not prevail. If he is saying that, we will have to have another look at those provisions on Report Stage.

They would have to go back through the agreed procedures.

The agreed procedures may stipulate that there should not be a trade union or that there should not be a strike.

Supposing procedures are not agreed.

The employees may sign contracts separately and privately and it may be that one of the terms of the contract is that an employee cannot agitate or suggest to fellow workers that a trade union should be organised in the place of employment. However, after a period of time an employee may suggest, because of dissatisfaction with the way the employment is progressing, that a trade union should be brought in. If it becomes known to the human resource manager that an employee proposed to colleagues that the union should be brought in, that employee may be carpeted. It may be pointed out to him or her that a provision in the contract stipulated that he or she should not encourage others to join a trade union. The employer may give that individual notice and pay any money due. When that worker goes to his or her locker to collect his or her belongings and tells fellow workers that he or she had been fired those workers may down tools on the basis that a personal grievance was not involved. They may feel that the individual was articulating the views of all workers. They may decide to strike until such time as the individual is reinstated and negotiations are opened.

Is the Minister saying that such action by those workers, who do not involve a union, is not covered by those sections? Will the effect of section 9 (2) be that those who go out on the picket line will find themselves served with personal injunctions by management and liable for damages if traders and others do not pass the picket resulting in losses to management? Will they be open to civil action for damages because they do not enjoy the protection of sections 10, 11 and 12? If that is the case this is a potential mine-field. If that is the worry Deputy Rabbitte has, and I think it is, we need a clear response from the Minister. If our fears are confirmed we will have to put down a very strong marker at this stage and examine it further on Report Stage.

Deputy Quinn made the point that even if a person has not been in employment for 12 months he or she can go to the tribunal under the unfair dismissals legislation if they are dismissed for reasons of union activity. The other important point is that immunities in our laws apply only to members of trade unions. That is the position under the 1941 Act and is a position for which the trade unions have always argued.

Unfortunately that is not the answer——

If they decided to join a union and if Deputy Rabbitte got a telephone call from a firm in Killorglin saying that they wanted to join a trade union——

If they are signed up members of a trade union movement and they hold a negotiation licence they would be covered by unions.

The only reason I am pressing this amendment is that it is central to the Bill. Incidentally, my visit was to Castleisland, not Killorglin. The company in Killorglin is identifiable and quite amenable to being organised and all those lovely Kerry towns seem the same to me——

On a summer's day.

Yes. The basis of a real doubt has been established in the minds of other people who, like myself, did not recognise this section for what it was. For example, at 10.30 a.m. tomorrow I will be at the Employment Appeals Tribunal on behalf of a constituent of mine trying to allege a case of constructive dismissal, the kind of situation which I have every day of the week. It would not be proper for me to adduce the circumstances in the House. There may be a case of a person in an established plant where the trade union has never been successful, apart from getting half a dozen sleeper members — the rest may be sleeping but that is neither here nor there — and there is no collective agreement or agreed procedures. One, two or three people then conclude that they ought to form a union but under section 9 (2) the employer can pick them off one by one without any fear of a collective response from their colleagues. Do not let anybody in this House tell me that it does not happen; it has happened many times in my personal experience. If two children come down to Liberty Hall this evening from McDonalds and say they want to take out union cards — notwithstanding what happened in McDonalds a few years ago — the same situation applies because this does not refer to a sole worker in employment, it refers to one individual worker of a group. Therefore, the organiser can be dismissed and told to go through the procedures. What procedures? The procedures unilaterally drawn up by a hostile anti-union employer are fundamentally anti-worker.

It is marvellous for a person to be able to go to the Employment Appeals Tribunal and say that he or she has only been employed there since leaving school, that they do not have two years' working experience but since they are contending that the offence is dismissal for trade union membership they only require 12 months and are now trying to make a case based on being sacked. Even if he were successful the chances of being reinstated are in the statistical data from the Employment Appeals Tribunal — significantly fewer than one-third of the successful cases merit reinstatement. Perhaps he will get damages. What damages do you get after working for nine months for McDonalds or indeed working for a couple of years for any employer? It is not worth counting the amount.

There is an old principle that the injury to one is an injury to all. Me today, may be the rest of you tomorrow. The rights of workers to combine to exercise their constitutional right to form a trade union are being eroded to the point of being eliminated in this section because, by the time the worker has been taken through these procedures and has exhausted them, the prospect of any collective action by the members has gone out the window and the person concerned has lost his job.

Non-union workers could not take collective strike action because they do not have immunities. How does that change their position? If they are in a union the procedures will not be unilateral. If a worker is active in a union and is dismissed he can take a case under the Unfair Dismissals Act, even if he has served less than 12 months. In the Bill we set out to control the position where there is a one man picket which tends to happen where there are trade unions and negotiated procedures. A worker can take unilateral action and cause great disruption which tends to be the case rather than the isolated case about which Deputy Rabbitte spoke which is in a non-union house and has no immunity.

The Minister misunderstands the position. I was not referring to a non-union house where the immunities do no apply anyway. Non-union houses have become organised as a result of a dispute. The position is that you may get a half a dozen members who may have been sleeper members for a very long time or they may just walk in off the street to you, but it is the fact of taking action against a particular worker that causes the rest of the workers to join. This means that they are no longer a non-union house, they are members of the union and conferred with the immunities. I am sure the Minister knows the difficulties in the health service where general trained nurses do not have access to the Rights Commissioner or the Labour Court machinery. In my recent memory the success of the non-INO unions — my union and the LGPSU — in organising general trained nurses was often provoked by disciplining on the ward. Because a nurse has no redress open to her she has to get the support of a few of her colleagues and go to the union. This will no longer be a non-union hospital and sanction of the withdrawal of labour makes sense even to the uniquely authoritarian figure, that is, the matron. With all due respect, the Minister did not reply to my question.

I want to refer to a non-verbal reply across the House to a point raised by Deputy Quinn. I think there was a nodded response by the Minister, which indicates a worrying reply. If a trade union go through the procedures, have a vote and go out on strike in respect of one person, that strike will not be covered. I want to ask the Minister if that is a correct understanding of the section.

As I have said, if there are agreed procedures they will have to go through them. If they go through the agreed procedures it will be all right.

If the strike relates to one person will it be possible for the union to put on a picket, having gone through the procedures following a vote or secret ballot?

If the procedures are gone through, the immunities will apply.

We are referring to two different kinds of procedures and we would not want to get confused. I described the situation where a person is dismissed in a non-union house for trying to organise a union. If the rest of his fellow workers are incensed at this decision they can come together and make two decisions. First, they may decide to join a union and be recruited by SIPTU or some other union, to whom they can articulate their concern. If they want that person reinstated but have been told he will not be reinstated, they can tell the union they are prepared to take strike action. There are no company procedures of the kind referred to in section 9 (2) open to them at that stage because there are no procedures for collective action in that previously non-union house whose members have now decided to join a union in the heat of their anger at the action taken. The union official will say to this group of people, "you are all signed up members of SIPTU and I agree with you that the only way we can get management to talk to us is to take industrial action in the form of a strike, or to threaten it, and under the provisions in section 14 of the new law we have to hold a ballot". If the new members of that union recruited in the heat of anger because of their perception of the treatment of one of their members, decide to authorise their union official to threaten strike action, will they enjoy the protections of sections 10, 11 and 12?

If there are no procedures they can proceed with their strike action.

That is the way I originally interpreted the section.

We are dealing exclusively with this amendment even though we are taking a number of amendments together. Section 9 (1) reiterates the provisions of the Trade Union Act, 1941 — the exemptions and immunities are provided only for members of recognised trade unions. Given the implied right of association and non-association, as expressed by the Supreme Court, it seems that the subsection may be invalid constitutionally and will be open to challenge. I am not a lawyer and I do not know if this will be the case.

I want to deal with part of the issue which is being teased out here. Should it not be part of good industrial relations legislation to specifically and positively exclude any contract of employment which provides that a person may not be a member of a trade union? Surely it is a basic right of any person to associate. This has been stated by the Supreme Court in more than one case. Perhaps we should include a specific provision in this section, which is the place to do it, which will specifically rule out any employer who offers employment on the basis that the person concerned cannot belong to a trade union. The introduction of such an amendment on Report Stage will go some of the way towards meeting the point raised by Deputy Rabbitte.

The constitutional position is that there are two rights — the right of association and the right of an employer not to recognise a trade union.

That may be so but we should not be providing in law any immunity for an employer who does not recognise a trade union. If he does not recognise a trade union that is his business but in the case of a workers' dispute with an employer on that issue he should be excluded from these immunities.

As Deputy Mitchell has reminded us, we are debating a number of amendments together. The provisions relating to procedures are far broader and can be interpreted in many more ways than the old wording which led to confusion in disputes. This does not clarify Deputy Rabbitte's point but it clarifies the other amendments put down to this section.

If the Minister gave me any positive indication of what he was going to do I would not take up the time of the House in having a vote on this amendment. I suggest, with the utmost respect, that neither the Minister nor his advisers foresaw the points I raised on this section. The only other possible construction one can put on it is that they well foresaw them, but I should not like to accuse them of being so partisan as to have included the amendment deliberately. I am reluctant to take up 20 minutes of the time of the House in a vote. I do not know why I should be so reluctant because I understand that when Deputy Ahern was in opposition it never gave him undue worry——

It was the Minister's colleagues who were messy; he was all right.

I accept the Deputy's advice. The Minister should take on board the arguments which have been advanced and come back on Report Stage with an amendment. There is no point in the Minister hanging his hat on the argument that where no procedures apply there is no problem. Any employer who, after the enactment of this Bill, does not provide in the contracts of employment of his workers procedures which will obviate this problem for him will be a fool. I repeat, "a fool", and I do not believe that employers are fools. There will be a host of consultants out there advising on the best type of procedures to implement. The FIE will distribute them off computer to all their members; they will receive them in the post the following morning. Therefore, I refuse to even contend with the position that no procedures constitute the answer. What happens when there are procedures? From experience of the industrial relations mechanism — which will not change substantially under the provisions of this Bill — I contend that one would be indeed fortunate to exhaust them after four months after which time the prospects of any kind of solidarity action from one's colleagues to protect one's employment or redress one's grievance will be nil.

I am all in favour of cooling off periods as required by this Bill — that seven days' notice must be given; it has been a rule of my own union operated for years. I am all in favour of that kind of thing. However, this is a different matter altogether. A serious injustice is being done to the trade union movement. Trade union officials and activists from virtually every union have been in touch with me, as recently as this morning, IDATU and the vintners and grocers, because this is precisely the kind of phenomenon with which they deal every day of the week. I predict there will be a growing awareness of the defects of this section. Again, I ask the Minister to rethink.

May I suggest that what we are endeavouring to do here, on the one hand, is clearly to remove from legislative protection the Madhatter-type strike. I do not think anybody is in disagreement with that but, in so doing, we want to avoid circumstances already adequately described. How do we achieve it in law in the drafting of legislation? Deputy Rabbitte has said he has endeavoured to draft an amendment or an addition and has been unable to do that so far. The Minister is of the opinion that what has been articulated is perhaps more excessive than is warranted in the sense that it is a circumstance unlikely to arise. It is quite clear from Deputy Rabbitte's professional experience in this area that some, not all, employers will have a comprehensive set of procedures providing for redress in the event of dismissal, including recourse to the Employment Appeals Tribunal. Those procedures, drawn up by the employer unilaterally, signed by an anxious prospective worker, will be those interpreted by a defence lawyer when an action for damages is being taken against individuals who would be members of a union under the provisions of section 9 (2). How do we avoid that situation because procedures will be in place, albeit unilaterally drafted and signed?

I would suggest that amendment No. 16 in the name of Deputy Toddy O'Sullivan might provide part of the answer because, at the end of section 9 (2) where it says: "... where those procedures have been resorted to and exhausted", the following would be added: "provided a collective agreement on such grievances and procedures exist". In other words, the addition of those words would avoid the very dark scenario to which Deputy Rabbitte referred, which is that in the first instance the rules would have been drawn up unilaterally and written by an employer, that there would have been no input whatsoever. The words are carefully chosen: "provided a collective agreement on such grievances and procedures exist".

I am not suggesting we should necessarily accept this today because this is complex territory. Nonetheless it is my belief it would meet the need of what has been articulated but may open another door about which we are unclear. Perhaps this should be re-examined and teased out further on Report Stage. I should like the Minister to take this amendment on board. The net point he has not satisfactorily answered is that if somebody tries, through a union, to call a strike on foot of a dismissal by an employer — who had signed an employment agreement with attendant elaborate procedures, including redress after dismissal, for whatever reason — then that strike action would be in breach of those procedures; it would be precipitous because the procedures would not have been exhausted. As Deputy Rabbitte rightly said, after three or four months the heat would have gone off and the effective action would have little chance of success. I contend that amendment No. 16 would meet the legitimate fears of Deputy Rabbitte.

What we are saying is, simply, one will only lose the protection of sections 10, 11 and 12 — and this is what this amendment means — if one ignores or fails to fully exhaust procedures and take precipitate action, including a picket in a strike. We are saying that one will only lose the protection of sections 10, 11 and 12 if one fails to exhaust the procedures, provided those procedures themselves are deemed to be fair, and the best way of ensuring they are fair is that they be collectively negotiated and agreed by both sides, but, in the event of one taking action — those procedures having been so agreed — then the protection of sections 10, 11 and 12 would obtain. I believe that amendment meets the legitimate concerns and argument voiced here.

We have debated this at some length. Obviously Deputy Rabbitte feels strongly about this section. I know he is being very supportive of the Bill, as is everybody in the House. I am not here to use the force of numbers or delay the House 20 minutes by way of division because, as Deputies are already aware, the Bill contains a great number of sections. I have been consulting my advisers. I do not know how we can achieve what the Deputy wants but certainly we are prepared to re-examine the matter and communicate our views. There is not much point in my saying I can certainly do it. I have a view on some earlier suggestions as to how I can meet Deputies' requirements but, frankly, I do not foresee an easy way of overcoming this one. However, by way of being helpful, I will have another look at it with the help of my advisers.

Perhaps I ought to accept that. The Minister may be somewhat tentative but that may be more, because like the rest of us, he does not know quite what is the answer. I am prepared to take him at good faith on that. I might reiterate that I consider it to be fundamentally important.

Is the Deputy withdrawing the amendment?

I am withdrawing it but reserving my position for Report Stage in the hope that the Minister and his advisers will resolve that problem for me.

Does the Minister intend accepting amendments Nos. 17 and 18?

No, because the procedures available by way of custom and practice will cover the position.

Amendments Nos. 17 and 18 deal with exhausting the procedures. If the Minister will read section 9 (4) it says: "The procedures referred to in subsection (2) may include ...".

I am sorry, I was looking at section 9 (2).

Subsection (4) continues:

resort to such persons or bodies as a rights commissioner, the Labour Relations Commission, the Labour Court, an equality officer and the Employment Appeals Tribunal.

For instance, if somebody resorted to an injunction it could take a long time to resolve and would hold up the whole case.

No, it is our view that those amendments are unnecessary because it will be clear what is provided by way of procedures in each case.

Acting Chairman

Is amendment No. 14 withdrawn?

Amendment, by leave, withdrawn.

I move amendment No. 15:

In page 7, subsection (2), line 32, to delete "which are normally availed of" and substitute "availed of by custom or in practice".

Amendment agreed to.

Acting Chairman

Is amendment No. 16 agreed?

No, not moved. There is a hold on that — we will refer to it on Report Stage — so it cannot be moved.

Amendment No. 16 not moved.

I move amendment No. 17:

In page 7, subsection (4), line 42, after "Tribunal" to insert "but shall not be deemed to include an appeal to any Court of Law".

Acting Chairman

Is the amendment agreed?

I am not accepting these two amendments.

Acting Chairman

The Minister is not accepting amendments Nos. 17 and 18.

I know we are talking about what is contained in a set of procedures. Here perhaps I am arguing against a position I took earlier, which was that one cannot have a subsidiary contract under which people sign away some of their rights to go to law, including a court of law, which must be construed as a fundamental right. Perhaps that is the reason the Minister is not accepting it.

It seems the more we can keep the courts out of industrial relations matters with regard to a set of procedures the better. Section 9 relates to the Madhatter strike syndrome rather than the courts of law. We may have opened up another dimension, which it was not anybody's intention, but is it not possible for those procedures to confine themselves to the various levels of conciliation and arbitration right up to the Employment Appeals Tribunal? On another occasion — if we do not do so on this occasion — we may want to reduce the number of appeals to courts of law which follow on foot of Employment Appeals Tribunal hearings which employers frequently make as they have the stronger muscle.

There is a lot of merit in the proposals being made by the three Opposition parties and I ask the Minister to outline his reasons for not accepting the amendment.

I also look forward to the Minister's explanation as I cannot see any reasonable reason for not accepting one or other of the amendments. I do not mind which one is accepted. I would draw the opposite conclusion. I think this affirms the case I made on section 9 (2). If we are to include the right of access to a court of law how can the Minister's advisers seriously advise him that there is a prospect of strike action? As I am not sure the Minister heard the point let me repeat it. If one keeps open the option of going to the civil court at the end of all the procedures we discussed, how can the Minister's advisers seriously tell me that the arguments I made on section 9 (2) are invalid?

Where a case ends up in the civil courts following the procedures laid down, no unfortunate worker could finance such a case. The ordinary worker could not afford to take a case to a civil court. A big factor in the operation of the Unfair Dismissals Act is that employers are now appealing decisions to the Circuit Court and workers are unable to pay the legal costs involved in such a defence. The procedures are already unwieldy, but despite this the Minister is refusing to stipulate that it may not include an appeal to a court of law. This is unreasonable and confirms that it is the employer's lobby who are behind this section. They want to ensure the procedures are the end of the road, and they want to leave open the option of drafting into these procedures the right of access to a court of law if they so wish. This is an important point.

I can assure the Deputy that he is wrong on all counts. The employers had no say in drafting the section. Furthermore, I outlined the reasons for not including this when I spoke about section 9 (2). We do not envisage any person or group taking a legal case but to show how flexible I can be — I am not so sure Deputy Rabbitte is as flexible given the views he has expressed — I would be quite prepared to stitch it in if, as Deputy Quinn and Deputy Mitchell seem to think, it would strengthen the Bill. I would have no objection to doing so.

Is the Minister accepting the amendment?

I am prepared to write it in but what I would rather do is look at it again. I would have no difficulty in including it.

Amendment, by leave, withdrawn.
Amendment No. 18 not moved.
Question proposed: "That section 9, as amended, stand part of the Bill."

Acting Chairman

Is the section, as amended, agreed to?

It is agreed, but let the record clearly show that major reservations were expressed about the fallout that could follow. The Minister and his advisers should be put on due notice that amendments from the Minister to tie this matter down would be preferable but if he fails to do this amendments from this side of the House will be tabled.

Acting Chairman

Is the Deputy saying it is agreed with reservations?

Question put an agreed to.

Acting Chairman

We now deal with amendment No. 19 in the name of Deputy O'Sullivan. Amendment No. 38 is related.

I move amendment No. 19:

In page 7, subsection (1), lines 45 and 46, to delete all words from and including "not be indictable" down to the end of the subsection and substitute "be lawful if such act committed by one person was within the law.".

The reason for proposing this rather innocuous change in wording from the negative to the positive is a philosophical one with which the Minister, his advisers and colleagues are no doubt very familiar. The question which must be posed is whether this Republic in the last decade of the 20th century can see its way to giving its workers the right in law under the Constitution to withdraw their labour in a positive manner — the fundamental right to strike — and to confer that right upon them in positive terms as against the rather negative, begrudging, Victorian manner in which it is expressed in the 1906 Act, a classic piece of British fudge, both intellectually and legislatively, which is at variance with the civil code in every other member state of the Community.

Most people in this House are aware of the long and elaborate debate which took place on whether we should change the 1906 Act and on the probability that section 4 of that Act was unconstitutional. It was a very good thing for industrial relations, the trade union movement and employment conditions, that a High Court action on that point was resolved privately. Had the matter gone through the full legal process, there is no doubt — and this view is shared by a wide section in legal circles — that the immunities section of the 1906 Act would have been found to be unconstitutional. Along with Deputy O'Sullivan I have attempted to provide an amendment which does minimal damage to the text and intellectual structure of this legislation while at the same time making the right to withdraw one's labour a positive right rather than an Act which is considered not to be actionable. The reason for making this point is self-evident.

For most of us in this House the only thing we have to sell is our ability to work. We should be allowed use this asset and the right to work in a positive manner. If the European Social Charter and the social dimension of the European Community are to mean anything and if the rhetoric still rebounding off the walls of Dublin Castle is to make any sense in the last nine years of this decade, and as we head towards the next millennium surely this sovereign Republic can confer a positive right to strike upon its people. If one reads the text of what is proposed one could imagine one was reading some kind of Dickensian penny dreadful.

Section 10 (1) states the following:

An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime.

We know the history of it over the period of the last century coming into the compromise legislation that was drafted in 1906. We know the imperial background in Victorian and Edwardian England that produced that kind of thinking and that kind of language, but do we need to enact it now? I would respectfully suggest to the House that we do not, that the effect of the amendment proposed and of the consequential amendment would be to make the section read that any agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute shall be lawful if such an act committed by one person was within the law.

I do not know if the Minister is accepting this amendment. Therefore I will allow him to quickly respond. I do not want to have an extended debate on this because the net point is clearly set out by me. In the document circulated in 1986 of the outline of the principles of the proposed new trade and industrial relations legislation to which this draft legislation now in front of us bears considerable similarity, the question of positive rights prevailed over the immunities argument at that time. The Minister has seen fit to change it and to go for an immunities-based system in relation to the right to strike. I reject that for the reasons stated and people who know me could expand on the sort of arguments that would give support to that rejection but, in deference to the House, because of the amount of time we have already spent here and since I have made this argument elsewhere, I will not repeat it now. There is a subsidiary argument as to why we should move from the negative phrase "shall not be indictable as a conspiracy" to the positive phrase "be lawful". That argument is in relation to the possibility of liability for unions, because while some actions may be lawful in the sense that they are not criminal acts, they could be open to the question of liability and that has been referred to at some length. It will surface later on as we go down through this legislation. In proposing this amendment on behalf of the Labour Party I would urge the Minister to accept it. It has been carefully phrased so as not to disrupt the logic and the internal language of the legislation. We have gone through this with our own legal advisers and it does not have a knock-on effect anywhere else in the Bill but stands alone and is self-contained. It is the kind of language with which I believe the Minister would prefer to be associated rather than what is in section 10 (1).

If the Minister is not accepting this I want to say briefly that I support the amendment by Deputy Quinn which is rather neatly drafted and which I would urge the Minister to take on board. Section 10 effectively re-enacts the immunities concerning civil and criminal conspiracy provided in the Conspiracy and Protection of Property Act which, whatever about the way it sounds, really provided that a strike would only be a criminal conspiracy after that Act if the participants committed acts which would be individually unlawful. It is unfortunate that the opportunity is not taken to amend section 1 to provide that an agreement or combination to break contracts of employment would not be actionable. Since a breach of contract is actionable if done by one person alone, a conspiracy to break contracts of employment is actionable despite section 1 and it is for that reason that I have tabled amendment No. 20 which would seek to include the words "in tort" at the end of section 2.

Acting Chairman

I would advise the Deputy that we are discussing No. 19 at the moment and the Deputy is discussing amendment No. 20.

I fully appreciate that but I suggest that they are connected because one deals with criminal conspiracy and the other deals with the liability to civil conspiracy of a third party who may be damaged as a result of the dispute. However, I will not labour the point seeing that the distinction is drawn but I do think there is merit in modernising the language and expressing it in positive terms as is suggested in Deputy Quinn's amendment.

(Carlow-Kilkenny): In rising to speak on this I am doing what I did when we were discussing the Bill on the Army, making an appeal for the sensible and logical use of the English language. I do not know whether it is the draftsman but there seems to be a hangup about continuing to use archaic language. Daniel O'Connell would have taken this in one mouthful in his day. The same system seems to continue. It is not the Minister's fault. I presume it is the legal draftsmen who say that if there is no negative in one cannot go to court and defend it. If the Minister can do anything for the sake of the English language I would be glad. Perhaps the people drafting the legal documents would take some notice of what is being said. I am all in support of bringing in something that reflects 1990 and not 1890.

The subsection re-enacts the first paragraph of section 3 of the Conspiracy and Protection of Property Act, 1875, as amended by section 5 of the Act of 1906 which has itself been repealed and re-enacted. This is necessary for clarity and for technical reasons also. After the repeal of the combination laws in 1824 trade unions were no longer criminal so far as statute law was concerned. Section 2 of the trade union Act, 1871, clarified that trade unions were not criminal at common law. However in 1872 it was held that a strike might amount at common law to a conspiracy to coerce or molest an employer in the conduct of his trade or business notwithstanding that no individual criminal acts were involved. As a result of this decision the Royal Commission on Labour Laws was appointed in 1874 and following its report of 1875 the Act was passed nullifying the decision and, as part of section 3 of the Act of 1875 which has been re-enacted, only covers the act of combining and in no way gives any immunity for acts that would be criminal if committed by one person. For example, the section does not change the law on breaches of the peace, unlawful assembly or rioting. Unfortunately I cannot accept Deputy Quinn's amendments because they reduce the concept of positive riots into provisions based on immunity and I am advised that this is not appropriate. What is provided for in section 10 is an immunity for certain actions which might otherwise be actionable as a conspiracy. It does not make lawful acts which are unlawful. Accordingly, I cannot accept the first amendment.

The second amendment also attempts to introduce the principle of positive rights in section 12, and a close reading of the first two lines of that section will show that the proposed amendment would render the provision meaningless. For that reason I cannot accept that amendment.

Acting Chairman

Is the Deputy pressing amendment No. 19?

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 74; Níl, 65.

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Vincent.
  • Brennan, Mattie.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Calleary, Seán.
  • Callely, Ivor.
  • Clohessy, Peadar.
  • Connolly, Ger.
  • Coughlan, Mary Theresa.
  • Cowen, Brian.
  • Cullimore, Séamus.
  • Daly, Brendan.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Ellis, John.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Fitzgerald, Liam Joseph.
  • Fitzpatrick, Dermot.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • Harney, Mary.
  • Haughey, Charles J.
  • Hillery, Brian.
  • Hilliard, Colm.
  • Jacob, Joe.
  • Kelly, Laurence.
  • Kenneally, Brendan.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Leonard, Jimmy.
  • Lyons, Denis.
  • Martin, Micheál.
  • McCreevy, Charlie.
  • McDaid, Jim.
  • McEllistrim, Tom.
  • Morley, P. J.
  • Nolan, M. J.
  • Noonan, Michael J.
  • (Limerick West).
  • O'Connell, John.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Keeffe, Ned.
  • O'Kennedy, Michael.
  • O'Kennedy, Michael.
  • O'Malley, Desmond J.
  • O'Rourke, Mary.
  • O'Toole, Martin Joe.
  • Power, Seán.
  • Quill, Máirín.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Treacy, Noel.
  • Tunney, Jim.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilson, John P.
  • Woods, Michael.
  • Wyse, Pearse.
  • Wyse, Pearse.


  • Barnes, Monica.
  • Barrett, Seán.
  • Barry, Peter.
  • Bell, Michael.
  • Belton, Louis J.
  • Boylan, Andrew.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, John.
  • Bruton, Richard.
  • Byrne, Eric.
  • Carey, Donal.
  • Connaughton, Paul.
  • Connor, John.
  • Cotter, Bill.
  • Creed, Michael.
  • Crowley, Frank.
  • Currie, Austin.
  • D'Arcy, Michael.
  • De Rossa, Proinsias.
  • Doyle, Joe.
  • Dukes, Alan.
  • Durkan, Bernard.
  • Enright, Thomas W.
  • Farrelly, John V.
  • O'Brien, Fergus.
  • O'Keeffe, Jim.
  • O'Shea, Brian.
  • O'Sullivan, Gerry.
  • O'Sullivan, Toddy.
  • Owen, Nora.
  • Pattison, Séamus.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Fennell, Nuala.
  • Ferris, Michael.
  • Finucane, Michael.
  • Flanagan, Charles.
  • Gilmore, Eamon.
  • Gregory, Tony.
  • Harte, Paddy.
  • Higgins, Jim.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenny, Enda.
  • McCartan, Pat.
  • McCormack, Pádraic.
  • McGinley, Dinny.
  • Mac Giolla, Tomás.
  • McGrath, Paul.
  • Mitchell, Gay.
  • Mitchell, Jim.
  • Moynihan, Michael.
  • Nealon, Ted.
  • Noonan, Michael.
  • (Limerick East)
  • Reynolds, Gerry.
  • Ryan, Seán.
  • Sheehan, Patrick J.
  • Sherlock, Joe.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Taylor-Quinn, Madeleine.
  • Timmins, Godfrey.
  • Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies J. Higgins and Howlin.
Question declared carried.
Amendment declared lost.

Did we take amendment No. 38 with amendment No. 19?

Yes, I observe that amendment No. 38 is related and the suggestion would have been to take amendments Nos. 38 and 19 together, by agreement. A separate decision can be made on amendment No. 38 when we reach it. If you wish to have the question put then, Deputy it would be quite in order.

I move amendment No. 20:

In page 7, subsection (2), line 50, after "actionable" to insert "in tort".

This amendment goes back to the question we have been dealing with concerning the implications of the Conspiracy and Protection of Property Act, 1875. Following the enactment of that legislation a strike would only be a criminal conspiracy if the participants committed acts what would be unlawful regardless of the strike. As we know, the judges were successful at the time in undermining the effectiveness of that Act in two cases in particular: the Quinn v. Leatham case and subsequently the Tafe Vale case which had such severe political repercussions on the neighbouring island and which led to the election of the Liberal Government in 1905 and subsequently the enactment of the Trade Disputes Act, 1906.

Notwithstanding the fact that Deputy Quinn's amendment was not accepted, section 10 (1) provides protection for criminal conspiracy situation. Section 10 (2) relates to the situation for civil conspiracy and to the possibility that a third party who considers himself to be adversely impacted on by a trade dispute may sue a group of workers who go on strike in breach of contract. I am advised that the neatest way of protecting against that situation is to merely add at the end of section 10 (2) the words "in tort". In other words, acting in pursuance of an agreement in contemplation of a furtherance of a trade dispute — I agree with Deputy Browne about the archaic language — shall not be actionable unless the act if done without any such agreement or combination would be actionable in tort. I hope the Minister can take that on board.

The subsection re-enacts section 1 of the Trade Disputes Act, 1906, without amendment. The section provides protection against liability for civil conspiracy to those acting in contemplation or furtherance of a trade dispute. A number of court judgments after 1875 developed a new civil liability for conspiracy which exposed workers to the possibility of being sued for damages for being involved in a strike. Deputy Rabbitte referred to the case of the Tafe Vale Railway v. the Amalgamated Society of Railway Servants of 1901 which found that a trade union could be sued in its own name for actions of its officials. The Royal Commission was established in 1903 and the Trade Disputes Act, 1906, was passed. Section 1 followed the recommendation of the commission. Section 10 (2) is a re-enactment of section 1 of the Trade Disputes Act of 1906. The subsection provides that: any act in contemplation or furtherance of a trade dispute is not actionable unless done by one person. The subsection has stood unamended since 1906. It has stood the test of time and should remain as drafted.

The thrust of this amendment has already been tested in the vote on the previous amendment; therefore, it would not be correct that I should spend more time on it so I withdraw it.

Amendment, by leave, withdrawn.
Section 10 agreed to.

Amendments Nos. 21, 24 and 25 form a composite proposal. It is suggested, therefore, that for debate purposes they be debated together. Is that agreed? Agreed.

I move amendment No. 21:

In page 8, subsection (1), lines 6 and 7, to delete ", or where that is not practicable, at the approaches to,".

The purpose of this group of amendments is to clarify beyond reasonable doubt where it is possible to place pickets. This applies in particular to multi-employment locations such as ports, airports, shopping centres and industrial estates. Section 11 (1) states:

It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where their employer works or carries on business,...

I am seeking to amend that provision by deleting ", or where that is not practicable, at the approaches to,".

My amendment No. 24 proposes to give workers in these circumstances the right to place a picket outside their place of employment provided it is a public place or outside their place of employment, provided it is a place to which the public normally have access, even though it may be on private property, provided the owner of that private property has not indicated in writing his objection to their being on that private property; I have in mind places such as ports, airports, industrial estates and shopping centres. Failing the first two provisions workers have a right to place a picket adjacent to or at the nearest approaches to the place of employment where it is not practicable or possible to attend at a point closer to the entance. This is an important proposal. My proposal is a better elaboration of the point. It is clear and does not take away from the rights of workers. It prevents a situation recurring whereby a dispute with one employer, for instance, at a port or industrial estate could affect the other employers and employees in that industrial estate, port or shopping centre even though they are in no way concerned with the dispute.

I recall that when I was Minister for Transport we had a dispute involving dockers with the Dublin Port and Docks Board. Pickets were placed at the entrance to the port. Even though the port is owned by a public authority it is considered private property and is not considered a public place. The dockers had no alternative but to place the pickets at the entrance to the port thereby nearly scuttling entirely the B & I Line and seriously damaging a number of other companies such as Coal Distributors. The B & I Line at that time were striving to survive and get over very acute difficulties. Indeed, Deputy Rabbitte — if I remember correctly — was very much involved with the trade union in the B & I Line. Due to circumstances beyond their control a picket was put at a place which affected their business. Not only were their own workers reluctant to pass the picket, although in the case of Congress unions that restriction can be got over by the all out picket procedure, but many suppliers and many passengers refused to pass the picket. The strike which lasted only five, six or seven days — and could have lasted much longer — cost the B & I Line a fortune because of the diversion of business. That should not be the case. The manner in which the Bill is drafted leaves that possibility open.

My amendment proposes to extend rights by saying that not only have workers the right to place pickets on a public place outside their employers but they have the right to picket on private property of this type unless the owner of that property withdraws in writing that permission. For instance, if the B & I Line were on strike and the reverse was the case, the workers would picket outside the B & I offices in the port rather than at the approach to the port. On the other hand, if the Port and Docks Board said, "No, you must not do that and here is a letter saying we will refuse you permission", the picket has to go on at the entrance to the port. I hope the Minister and the House will see the wisdom of this provision and will agree to accept it.

I understand Deputy Mitchell's concern in moving this amendment. He is worried about the question of picketing at multi-employment complexes, as he has been explaining to us, in ports, airports, industrial estates and shopping centres. I share his concern and I emphasise that the wording of the Bill was advised with such situations in mind. The present wording will achieve the same end but in our view in a much less complicated way than the arrangement proposed by Deputy Mitchell.

The fear has been expressed that the use of the words "at the approaches to" will lead to picketing at the entrances and approaches to multi-employment complexes. That ignores the words which come immediately before those words, namely, "at, or where that is not practicable,". The test to be applied is whether it is practicable in all the circumstances to picket at the individual employer's place of business inside the complex. It normally should be possible to arrange that the picket be placed directly at the premises of the employer involved in the dispute. Only where the owner of a complex objected to the picketing taking place inside the complex would the saver come into effect and the picket would be placed outside. If an employer should choose to exercise his rights to prevent trespass onto his property that is clearly recognised in Deputy Mitchell's amendment. However, as I have said, the Deputy and I are in agreement on what we are seeking to do. I am satisfied that the wording in the Bill will achieve this end in a less complicated way. We have had discussion and representation on this because of the practices involved. We have looked at this closely and we have been advised that the section will achieve what both Deputy Mitchell and I are trying to achieve.

I wonder. I understand the legal position at the moment is that there is no exemption, no legal cover for picketing on private property. Is that right?

It is right.

Industrial estates, shopping centres, ports and airports, even though they may be under public authorities, are private property and picketing cannot take place within the boundaries of that private property unless we amend the Bill along the lines I have proposed. The Bill as drafted only perpetuates the present position where the entrance to the employment covered by the trade disputes exemption is the entrance to the port, industrial estate, shopping centre or other multi-employment location. It is not the entrance to the employer themselves. It is the entrance to the whole complex, as it were, and that is a serious flaw in the Bill. I hope the Minister will accept that the Bill as drafted does not cover the point. I hope he will see that if there were a strike tomorrow in the B & I Line or in some other company in the port of Dublin the pickets from such strike would be placed at the entrance to the port with very serious effect not only for other employers in the port but potentially for the country in that case.

In regard to property rights, normally without difficulty an employer waives the right and allows a picket to be placed. We are emphasising that where that is not practicable the approaches would cover the position. To attempt to define it in an over-complicated way would not achieve anything more. I am not arguing with the point of principle the Deputy is making. It is our advice that this wording will have the same effect both in law and in whatever way it will operate. I know too well what has happened on occasions. My advice is that this wording will overcome the difficulty in so far as it can.

On the amendment and on section 11 — one cannot logically debate the amendment without having regard to the implications in a broader sense — the Minister in this instance, in marked contrast to section 10 where studious attention was paid to re-enacting the verbiage and text, so to speak, of the 1906 Act, is now proposing in relation to section 11 to change the 1906 Act in respect of picketing quite substantially. He might explain to the House either now or when debating the section why he has seen fit to change it. I think I know some of the reasons but I would like to hear the current up-to-date reason it has been changed.

We will need to talk this amendment through clearly because this is another potential flashpoint of industrial relations with regard to picketing. There has been a great deal of hysterical talk over the years regarding picketing and the rights of picketing, much of it influenced by the intemperate language which comes from across the water from current supporters of the — at last — declining Tory administration but it has coloured the judgment in some employment and employer circles here. I hope the Minister when replying on the amendment will clarify what is in the mind of the drafting people who wrote into this section "where that is not practicable, at the approaches". What does "practicable" mean in this instance? If you had an industrial premises opening onto the footpath and there was a gate on the footpath, the footpath is common territory, the employer is not in private ownership, therefore the picket could go there, provided it was not causing obstruction to traffic, in compliance with normal civil law requirements as administered and exercised by the Garda Síochána.

Secondly, if there is a factory in an industrial estate there will be some kind of approach outside the gate and if the employer refused to allow the picket to go inside the curtilage of the property owned or leased by the company the picket can be placed at that approach. There is a clear point there. However, suppose to maximise the impact of the picket, the strikers, the pickets, decided to put a picket on the entrance to the entire industrial estate because from their point of view this is highly practicable, it may be a more effective point to focus attention on the fact that they are in dispute with this company. I understand the 1906 Act made no restriction as to the location or confinement of pickets although subsequently over a long time legal cases gave definitions. I have not been persuaded by the logic of the argument Deputy Mitchell put forward in respect of his amendment, but I would like to hear the Minister outline what is intended by the phrase "where that is not practicable, at the approaches".

The Deputy has asked me to give an explanation of the section but we will be dealing with that later. The principle behind this is that an individual or union, the strikers, will have to picket their own employer. In a case where an employer puts forward his or her property rights and refuses to allow a trade union to picket on his or her premises, it would not be practicable for the strikers to put a picket on the gate or the entrance to that property. I am allowing for that because it would be equally unreasonable that they could not picket. There are other circumstances that relate to that position. Strikers, acting in furtherance of a legitimate industrial dispute, who have gone through the procedures in total, and who wish to place a picket but are in some way frustrated by some group from so doing, are covered by the phrase, "where that is not practicable". Otherwise, they picket the premises.

I am not entirely convinced by that argument. It is ironic that the 1906 Act, born out of the anti-union climate at the beginning of the century, is less restrictive than what is proposed in the Bill. Major changes are contemplated in picketing policy. The 1906 Act permitted peaceful picketing "at or near a house or place where a person resides or works or carries on business or happens to be". We know that the courts subsequently tightened that up, and quite properly so. That arose in the case of Irish Dunlop Ltd v. Power, and Datsun Ltd v. O'Loughlin, and none of us have a complaint about that. However, under the 1906 Act once the act is in furtherance of a dispute there was no restriction on the premises which could be picketed and there was no restriction on the number of people picketing. When the matter was tested the courts stipulated the maximum number of picketers, that picketers should conduct themselves in a peaceful fashion and so on.

The Minister is proposing to tighten this up and, conceivably, he could create serious problems in the case of IDA industrial estates, large shopping complexes and so on. I should like to instance a case in my constituency that has been the subject of a row for many years, the construction of the Tallaght town centre which finally, after being designated a tax-free zone, got going. That occurred after the two local authorities concerned had to cave in and hand over the fee simple to the developer. In fact, we will now have the first major town centre in Ireland that is private property. If there is a dispute with any of the anchor tenants at that location the developer, it seems to me, will be perfectly within his legal rights to remove a person from the site. He will be able to remove that person to such a distance, bearing in mind the vast area involved, that he might as well be waving his picket at the moon. The picket will have no impact. The ideal thing was to be able to place a picket adjacent to the person who was being picketed. If the firm being picketed was, for example, Quinnsworth, the name of that company could be written on the picket board in order to indicate to people that the dispute was with that company. I am sorry that this provision is being tightened up. While I have some sympathy with the motivation of Deputy Mitchell's amendment, it is my view that it will only serve to tighten the matter further.

We should stay with the amendments and have a more general debate on the section later.

One of the difficulties is that to "attend at a place" is not defined anywhere. Will the Minister clarify what to attend at a place means?

If one is talking about the place of employment one is talking about their identifiable place of work.

Will the Minister accept that that is a very loose definition?

At our place of work, for example, means at the gates of Leinster House. That is very clear.

I should like to take the case of multi-employment. If we are concerned about Guinness, for example, the position is clear because it involves a one-employer place but if we are talking about Clonshaugh Industrial Estate, the Pearse Street Enterprise Centre or the port of Limerick that is a different matter. "A place" is not defined. I understood that the purpose of the legislation was to see to it that workers who were not involved in a strike were not dragged into it, but that major loophole has not been closed. The Minister owes it to the House, and to himself, to come up with a clearer definition of what "to attend at a place" means, particularly where we have multi-employment locations. We have mentioned ports, airports, industrial estates and shopping centres, but in other places such as medical halls there could be more than one employer. In an undemocratic way a small minority could affect the livelihoods of a big number of workers who were not involved in a strike.

Section 11(1) states:

It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where their employer works or carries on business ...

If an employer operates from the middle of an estate it cannot be the entrance to that estate but where the employer carries on business.

The Minister has told me that there is not a right to picket on private property.

It is waived by employers but it is not a constitutional right.

We have established that it is not a right and it is open to a union to interpret this phrase and picket at the entrance to an estate, as happened on many occasions. We must not assume that all owners of such private property will waive that right and we must not assume that all trade unions in all circumstances will interpret the law the way the Minister would like them to interpret it. The reality is — and we must remember this — that we are essentially dealing with problems in regard to unions out of the mainstream. In the vast majority of cases this Bill is not needed in respect of unions belonging to the Irish Congress of Trade Unions because we already have very good procedures and practices in relation to them.

We should remember the main flash-points of the dreadful industrial relations period over the last 15 years. This Bill clarifies beyond doubt that workers have the right to picket private property unless permission to do so is specifically withdrawn in writing. The Bill should seek to enhance the situation whereby workers who go through normal procedures regarding balloting, etc., are fully supported by law. Bad practices and habits should not be supported by law whether they come from unions or — as is more often the case — management.

You cannot legislate to overcome employers' property rights. That is why the wording is in that form. If workers cannot picket their place of work — for whatever reason — they picket the approaches to it. Perhaps there have been employers who indicated that the individual premises could not be picketed and that the picket would have to be put on the approach to it but it does not happen very often. In the vast majority of disputes, the picket is where it should be and does not disrupt other people.

The vast majority of disputes do not need this legislation. The Minister is missing the whole point of the Bill. This legislation is needed for a minority of cases where good procedures are not followed.

There are other areas where the 1906 Act is being changed because it is necessary. We must take case law into account and, as Deputy Rabbitte said, a substantial amount of case law has been amended.

My concern is that in defining the legislation in a more restrictive way we might create problems for ourselves by driving people outside the law. Deputy Rabbitte referred to President Hillery when he was a Deputy in this House and the famous ESB emergency legislation. Unless there is a broad social consensus within society on the observance of law in regard to industrial relations, the fact that an industrial relations law may be on the Statute Book or that a particular provision may be restrictive, does not mean it will be effective. I do not think that anybody would necessarily disagree with that.

I do not support Deputy Mitchell's amendment although I see the necessity for the "as far as practicable" clause having regard to modern conditions and the way in which business is run. For example, a small tenant in a shopping mall may want to go on strike but the manager of the centre may not allow him to have a picket in the middle of a pedestrian mall——

There may not be room.

He may have to place the picket outside. It may not mean that there is an antipathy on the part of the manager towards the nature of the dispute, it may just be the sheer practicalities of trying to run the shopping centre, which is that person's concern.

Section 11 (1) does not necessarily cause me any problem although there is a separate amendment in regard to businesses. The real problem referred to in Deputy Mitchell's amendment is the one he mentioned earlier regarding the deep sea dockers at Dublin Port. The dockers decided that they were not exercising sufficient industrial muscle on the DCH and the port authorities, they came further up the river and put the picket on the access to the B & I container and passenger ferries. Will the Minister indicate how this legislation would have impacted on that situation? The Minister is familiar with the dispute as it was in his constituency and everybody in the industrial relations world was aware of the precarious position of the B & I. The docks had been a source of difficulty for some years, indeed the former chairman of the Labour Court had undertaken a fairly substantial report in relation to working conditions and how they might be improved.

What sanctions, if any, are contained in the Bill against somebody who is not practicable in relation to where they put a picket at the approaches to a place of employment?

An injunction can be taken out against them if they picket other than in the designated area. The port dispute was particularly complicated because deep sea dockers are not in one spot. Where is a docker's place of work? I have discussed this with many people and I have come to the conclusion that you cannot write everything into law. If this Bill had been enacted at the time of the dispute the dockers would not have been in a position to picket anywhere except at their place of work which certainly would not have included the B & I headquarters.

It would not have included access to the B & I terminal either.

That is correct.

The B & I could have retaliated by taking out an injunction against the marine port.

And vice versa. This is more complex and complicated than the straightforward issue. I want to take issue with one point raised by either Deputy Quinn or Deputy Rabbitte who said this section will be restrictive, prohibitive and did not have consensus. I firmly believe this section, as drafted, has got the consensus and goodwill to make it operative.

I am well aware of the considerable efforts which have been made by the Minister and his predecessors in arriving at a consensus with professional negotiators on either side. However, there are maverick employers, one of whom used to make ambulances in the midlands and went out of business, and maverick workers who have never been part——

May I intervene to put it on the record of the House that I utterly and absolutely reject the disgraceful remarks made about me by the Minister's colleague, Deputy Jacob, during the debate on the Finance Bill. Deputy Jacob involved me in that dispute. I was neither next nor near the plant in Longford to which Deputy Jacob referred. I would be glad if my remarks were passed onto Deputy Jacob.

That does not arise now.

The record needed to be corrected in that regard. Obviously consensus is necessary and clearly the representatives of the social partners and the professional civil servants charged with trying to hold the middle ring have had to work long and hard at achieving this. Simply finding consensus among our group, so to speak, is no guarantee that it will spread out, unless it is manifestly seen to be a reasonable approach. That is the point I was making.

Deputy Quinn asked the Minister a question about the last strike at Dublin Port. When he asked what the employers would do if the strike occurred under this legislation the Minister replied that an injunction could be brought against them. When I was Minister for Transport I remember pleading with the Dublin Port and Docks Board not to go into court under any circumstances because the end result would be that the workers would go to prison. We witnessed that before when they were ultimately sent home in taxis. There should be no place for the use of injunctions as a means of trying to prevent industrial disputes. We should keep these disputes out of the High Court so far as possible. We should be seeking to avoid what my mother used to call "the occasion of sin". We should be trying to eliminate those things which allow that sort of situation to develop.

It is called abstinence.

If the Deputy has found the solution he should put it on the record of the House.

Deputy Quinn may have greater experience of these matters and perhaps he will elaborate on them later for my benefit. Does the Minister not agree we should be trying to avoid the use of injunctions or creating the circumstances where injunctions might be resorted to? I want to refer to a typical case where injunctions are sought. Many employers may be affected by a picket but one employer, his business and workers may be so badly affected, even though they have nothing to do with the dispute, that he is forced to seek an injunction to prevent the picketing. Any sensible person should realise that this is a grave possibility, and is something we should try to exclude. I submit, in the absence of any definition by the Minister of the term "attend at a place", that my proposal is very reasonable and provides fully for the rights of workers while, at the same time, respecting the sort of legitimate worries employers might have.

I want to reiterate my reply to the question asked by Deputy Quinn in case it is perceived in the wrong way. I said an employer could seek an injunction but I do not believe this is the road to go down. I do not think we can provide in law for all aspects but this section covers the situation fairly tightly. If everybody stuck to the Bill and followed every word in it there would be no difficulty. However, regardless of what is in the Bill that will not always happen. The legislation provides that workers should place a picket on their place of work. In cases where this is not practical, for whatever reason they will find a suitable area to place the picket regardless of what I or anyone else may say. I am trying to be practical in what I am doing. If I provide that they can put a picket 50 yards this way or that way nobody will abide by it. People who will be trying to sort out a strike in 20 years time either with the Labour Relations Commission or in the Labour Court will laugh when they check what we said in this House. My practical approach to this issue is based on a lot of discussion and advice. I accept totally what the Deputy is trying to achieve — I have taken those views into account — but I believe the section as it stands is adequate.

Deputy Quinn asked about the purpose of section 11 (1). This section re-enacts section 2 (1) of the Trade Disputes Act, 1906 which makes peaceful picketing lawful. It provides for picketing at a person's house, except where business is carried out. I believe this provision is acceptable to everyone. I think Deputy Rabbitte said it would be a pity to change what is in the Act but he subsequently said he would not be against this change. It also confines picketing to a worker's own employer except in the circumstances set out in section 11 (2). I believe this is a reasonable balance.

I want to refer to the Dunnes Stores dispute which was brought by IDATU. People who were not working in Dunnes Stores picketed outside Dunnes Stores in Henry Street. Under section 11 (1) will a person, acting on their own behalf or on behalf of a trade union, have to be a worker in the enterprise in question in order to be on that picket?

Or a trade union official.

Section 11 (1) provides that it shall be lawful — and, therefore, by inference unlawful for anybody else not covered by the definition —"for one or more persons, acting on their own behalf or on behalf of a trade union ...". What does the term "acting on their own behalf" mean? The Dunnes Stores dispute was official and the picket was placed at the entrance to the shop. I passed by the picket on a couple of occasions——

The Deputy is asking whether they will have immunity. If they are members of a trade union they will have immunity.

Because the Bill refers to a category of people so described, the inference is that it will therefore be unlawful for any other person not so described to become involved in a trade dispute. What is meant by the term "person or persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute ..."? I have given a concrete example. Will it be lawful for a member of the Irish Anti-Apartheid Movement who supports the adoption by a trade union of a boycott of South African fruit, vegetables or goods to act on his own behalf in support of a dispute by being in a picket? Could the management say that because there were only three of their employees in this picket, the others were not employees, they were therefore, in the context of section 11 (1), outside the law and take an injunction against them?

Progress reported; Committee to sit again.