On a point of procedure could I suggest, having regard to the way in which the voting has interrupted our timing, that we allow the debate on the section we were discussing before we reported progress for the sos to continue until 10 o'clock and the balance of the sections to be debated until 10.30 p.m. with the agreement of the House. It had been scheduled to end at 9 o'clock.
Private Members' Business. - Industrial Relations Bill, 1989: Committee Stage (Resumed).
Debate resumed on amendment No. 83:
In page 16, between lines 15 and 16, to insert the following subsection:
"(4) Notwithstanding subsections (1) (a) and (3) the Court may investigate a dispute if the parties to the dispute request a court investigation and where a conciliation conference has been held at which the parties made a genuine attempt to resolve the issues in dispute.".
—(Deputy Quinn.)
You have heard the suggestion that the proceedings on sections 23 to 41 conclude at 10 o'clock instead of 9 o'clock. Is that agreed? Agreed.
Does the Minister agree to that?
That is agreed.
On section 26, I wonder if the Minister could clarify the amendments we are now dealing with. Which are consequential and which are alternatives?
We are on amendment No. 83. I thought Deputy Rabbitte sought some clarification. We are awaiting a response from the Minister.
Under the 1969 Act the Labour Court is enabled to investigate a dispute when conciliation has been held and the parties request it to investigate. One of the main reasons for the establishment of the commission is to ensure that as many issues as possible are settled without recourse to the Labour Court and this has to be reflected in the legislation. The amendment proposed would have the effect of maintaining the present situation whereby disputes can be referred readily for formal investigation to the court.
The wording in the amendment proposed by Deputy O'Sullivan would create the same difficulties in interpretation which arose with an earlier wording in the proposals which required the parties to make bona fide attempts at settlement. The words "made a genuine attempt" could also give rise to disagreements as to whether or not an attempt at settlement has been made. The wording in the Bill requiring the commission to be satisfied that no further efforts on its part will advance the resolution of a dispute gets over the difficulty of interpretation. If operated flexibly and in a common sense way, as is the intention, the provision should not give rise to problems while at the same time making it clear that as many disputes as possible should be settled at conciliation.
I am somewhat unhappy about the thrust of this section and the way it is being interpreted in so far as it seems to remove from parties to a dispute the possibility of having access to the court and they will have to go through the commission. A lot depends on how the commission will function and how it is perceived in the industrial relations culture. That culture will take some time to develop and I have no doubt that during that time there will be many test cases and litigation. Will the Minister explain to the House why he wants to curtail access to the courts which, in effect, will restore the status quo?
I agree with the Minister that the court is resorted to too early in the process and that more work could be done in some instances at the conciliation stage. This raises the wider question of the role of the Labour Relations Commission. As we have no track record on how they will conduct their affairs it is important that we should have a discussion on the topic referred to in the amendment. I do not have a definite disposition on whether the amendment is necessary but the Minister ought to address the questions it raises.
The conciliation service of the Labour Court has served us well, despite some reservations expressed in certain areas. One could describe the Labour Relations Commission as a good solution but one could follow that by asking, what is the problem? However, it is important to put on record that the conciliation service has served us well. It is usual that if the matter in dispute proceeds to the court at an earlier stage than we would like, it is because both parties to the dispute want a forum at which a finding will be made rather than requiring the parties to voluntarily agree at conciliation. On occasions it can be helpful to take the agreement out of the voluntary arena and to have it referred, by agreement, to the court where a finding is made and, in 99 per cent of cases, is automatically accepted. I have an open mind on the amendment but I should like to hear the Minister's response to the points raised.
I withdrew my amendments because the Minister met most of my points in his amendment. We do not want every dispute ending up in the Labour Court with the agreement of both parties to be followed by a call to the Minister to intervene in the dispute. That was the case for too long and it undermined labour relations. One of the better developments in the last ten years is that Ministers do not intervene in disputes very often. Ministerial intervention should only take place in exceptional circumstances, such as in the case of the Waterford Glass dispute.
It would be bad if the new Labour Relations Commission were bypassed frequently. That should only be done if the commission have exhausted their conciliation efforts or if the circumstances of the dispute are so exceptional that they should be bypassed. The Minister's proposal goes a long way to meet the points raised in the amendments before us.
Deputy Quinn has asked me to explain the procedures and I will endeavour to do so without taking up too much time of the House. The establishment of the commission has four principle objectives, first, to give a new general responsibility for the promotion of good industrial relations to the appropriate body; second, to encourage and facilitate a more active approach to dispute prevention resolution; third, to seek to restore the original purpose and status of the court investigation and recommendations; and, fourth, to make provision for a number of new functions and services.
The debates on the 1946 Act make interesting reading for many reasons. They explain clearly why our predecessors felt that the court should be an appeal of last resort. Many of the arguments advanced then are compelling today. The intention was that the court should be something special and final. The debates explain how our predecessors felt the conciliation machinery should develop. That was developed in other minor Acts, such as the 1969 Act. The workload, new procedures and developments, require that there should be a professional facility to deal with current disputes.
Those who sat at the Cabinet table, and Deputy Rabbitte who was involved in disputes from a different perspective, will accept that there are lessons to be learned from every dispute. It is important that they are followed up. I mentioned before that the same files tend to pass the desks of the Labour Court, the conciliation service and Ministers for Labour. One often wonders if the lessons learned in disputes made any difference to later disputes. One could ask if the reasons for disputes in the sixties were the same for disputes in the eighties, and I have no doubt that the same reasons will surface in disputes in the nineties. It is important that people work on good industrial relations and learn from other disputes. I agree with Deputies that the conciliation service has served us very well and the Bill does not seek to downgrade that service. Nothing could be further from the truth. The court has served industrial relations well. However, it is clear that there is a change in the structure and approach to our conciliation service. It is important that the court should be the final authoritative tribunal in industrial relations and it was always intended that that should be the case. The establishment of the new Labour Relations Commission, separate from the court, will enable them to adopt a central role in guiding and encouraging the parties concerned to make the necessary improvements in structures, practices and procedures. The fact that they are made up of the social partners means that the best people on both sides will be involved.
Section 26 states that the courts may not investigate a trade dispute until the Commission have endeavoured, without success, to resolve it. The section also requires the commission to provide a report to the court giving it all the relevant information in relation to the dispute and the attempts to resolve it.
Someone suggested earlier that the flexibility which has existed up to now might now be removed. That is not the case. The chairman of the commission may waive the requirement for prior conciliation talks in circumstances where it is considered appropriate to do so and must inform the court of the circumstances in which the requirement was waived.
The section also contains a waiver for appeals from the rights commissioners and the recommendations of equality officers in cases which the court had begun to investigate before the establishment of the commission. This is a minor point but it will ensure that ongoing business is not affected. The implementation by the commission of the section will, to a large extent, determine whether a more aggressive conciliation service can restore the original status of the court as a court of last resort by reducing the number of cases referred to it.
There will be a response, in a later amendment, to points made by Deputy Mitchell that the Labour Court should have the power to intervene on its own initiative in exceptional circumstances which would warrant this. The conciliation service will deal with all disputes and will try to resolve them. If they do not succeed the chairman of the Commission — or an appropriate officer — will transfer the case to the court. If it is a dispute affecting the national interest and the chairman of the commission feels he should waive basic conciliation and bring it straight to the court, there is provision for doing that.
The new function of the Labour Relations Commission will be in drafting and implementing codes of practice and trying to promote good industrial relations. They will also try to improve individual companies and sectors. At all times, the present flexibility and good practice by industrial relations officers, the head of the conciliation service and the court will be maintained, as that is clearly my wish.
The task now proposed to be given to the commission is very substantial. We have seen — regrettably but perhaps not inevitably — an increase against the trend in figures for industrial relations disputes and days lost through strikes. If there is not a successfully negotiated programme for the continuation of some kind of social partnership the probability is that that will increase instead of decreasing. My worry is that we will simply have the current role of the Labour Court transferred — with some changes — to a constricted staff resource. This may not be the time or place to raise these matters but it is obvious from the fine print in the various sections and in the Fourth Schedule that this will be an extension of the Civil Service in real terms. All the constraints vis-à-vis the embargo and resources will impact very heavily on the commission. The commission are being asked to carry out the functions from (a) to (i), inclusive, set out on pages 14 and 15, which is an enormous task.
Earlier on we talked about encouraging the amalgamation of trade unions. One of the factors which clearly prevents unions from coming together is the personnel implications for certain union officials who may not have a role in the amalgamated unions. It has always been my view — I am not saying this for the first time — that, having regard to the need to employ people with good industrial relations experience, there would be considerable merit in the Minister having the power to appoint someone in their fifties on a contract basis. This could be a trade union official who could facilitate a merger on one side and work for the commission on the other. He would add to the resources of the commission and bring a lot of expertise to the industrial relations area from a practical point of view. He could also be paid a decent wage which perhaps he did not have in a smaller union. Indeed, low wages make smaller trade unions very vulnerable.
The Minister is talking about having the commission up and running by the end of October. Unless additional staff resources can be made available to the commission it will be the Labour Court under another name with basically the same personnel. There will be extra staff and more cash but there will be long and difficult negotiations with the Department of Finance because they do not change, irrespective of what Minister is in office. The money and resources will be expended on senior staff. I do not know to what extent the Minister has thought this through but, unless we can get new people who have some feel for industrial relations to assist those currently in the conciliation and industrial relations services in the Labour Court, the objectives of the Commission — which the Labour Party fully support — will not be readily achieved.
I do not disagree with Deputy Quinn but I have a few brief points to make. It is a very sensitive area. In negotiations over the last few years the number of cases was reduced. I suppose there was a justifiable reason for reducing the numbers but I saw what was coming in regard to the additional workload.
Deputy Quinn made a valid point about recruitment of staff. I have looked at my powers and the procedures which must be followed and we will have to examine the matter further.
I hope that the establishment of the commission will not create a barrier between practitioners and the conciliation service. The very informal, flexible arrangement to which the Minister referred served our industrial relations well. I would hope there would not be a new bureaucracy created which would render that personal relationship between conciliation officers and practitioners, whether they be employed by the FIE or the trade union movement, more difficult. It has been suggested to me that it will be sufficiently difficult to retain that personal relationship, that one will have to go through a set of procedures, bureaucracy and so on, whereas, to date, even when one did not intend to involve the conciliation service, the practice would have been that very often one would have briefed the conciliation officer in the Labour Court on what was happening in a particular dispute, or the Labour Court would telephone the trade union official and ask: do you think it would be timely for me to intervene or what is the story?
If the labour relations commission concept is to work, it will have to have dynamic leadership. Otherwise I cannot readily see what would be different about their function. I commented earlier today on conservatism within the trade union movement. All of us in this House, privately, would agree that there is no more conservative institution, in many respects, than the trade union movement; they are very traditionalist and conservative in their approach. Just because we give something a new name does not mean that trade union officials generally will approach the position in a different fashion. If they find themselves before a conciliation officer who is working to the Labour Relations Commission rather than to the Labour Court, I do not think it will make a great deal of difference to the attitudes of the trade union officials. If the conciliation officer were to say: I am sorry, I do not think you can go through the court because we have not teased it out sufficiently, he may receive a fairly traditional answer in blunt terms. Therefore, a great deal of homework will have to be done, under dynamic leadership, to encourage the view that things have changed, that there is a different expectation.
On occasion there is a real problem encountered: for example, an employer will find his hands are tied in circumstances in which he will say: I would like to agree this across the table at conciliation but, for a variety of reasons, I cannot do so. It is then referred to the next stage of the Labour Court. The Labour Court having available to them the report of the industrial relations officer, very often enables them to make a recommendation which will prove acceptable to both sides, which lets the employer off the hook in a way that he would not be free voluntarily to agree at conciliation stage. Obviously the Labour Relations Commission will have to feel their way. It is a new concept. The commission will require dynamic leadership but they should not necessarily throw out the baby with the bath water; where flexible, informal arrangements work they ought to be allowed to continue to work.
I am reminded of an anecdote cited by a man who has now risen in the Civil Service to the position of Secretary of a Department, who was a prominent figure in public service negotiations when I was dealing with them. He told me, having agreed one particular national understanding, he had been sent on a course to Oxford. At the end of the course one of the key questions posed by the tutor was: how could you identify the bottom line of the other side; how could you know when the trade union side had reached its bottom line? All the English chaps gave very elaborate, scientific answers about how this could be done. Our Irish colleague in the Department of the Public Service — as it was then — put up his hand when the tutor remarked: I see our Irish friend has a contribution to make. The tutor asked him: How would you identify it and he replied: I would ask them in the pub afterwards. A lot of that takes place in Irish industrial relations where the informality and flexibility that enables somebody in that position to ascertain the union position in the pub or wherever ought not be discarded in favour of a very bureaucratic, stylised procedure alien to our culture.
We are all trying to figure out who he is.
We are all trying to figure out which pub he was in.
Deputies would not have too much difficulty identifying which pub, whatever about which Secretary.
I have emphasised the need for maintaining the flexible, informal relationship, the close contacts, the work with practitioners, what might be described as the day-to-day looseness in formalities, all of which we discussed pending the introduction of this Bill. We have all discussed how the conciliation service, the Labour Relations Commission and the Labour Court itself should work. Since the time the proposals were announced, well over a year ago, until the introduction of the Bill we have been able to make progress and highlight the issues and arrangements well worth maintaining; people have argued against very little in that respect. I agree fully with Deputies that we are talking about people who would be flexible perhaps in taking people on contract, being able to benefit from the experiences of the best people available, the attitude of the member of the commission and their leadership. As long as I have been involved with the Labour Court we have been extremely lucky in its membership. Largely the people who have served have been very experienced and have had a very good feel for the normal day-to-day issues that arise in industrial relations.
The conciliation service provided to date by the Labour Court will continue to be provided by the proposed Labour Relations Commission who will facilitate the provision of an even more active conciliation service. It is worth recording that a previous attempt to broaden the role of the conciliation service within the Labour Court structure — under the provisions of the Industrial Relations Act, 1969 — failed. The concept of a new Labour Relations Commission was born in order to reap the full potential of such conciliation service.
I might add that the Labour Relations Commission will also provide an advisory service, something mentioned by Deputies Rabbitte and Jim Mitchell. Indeed, the conciliation service has been involved in a continuous fire-fighting role over the years in that industrial relations officers have been able to give limited advice only even where they have been aware of serious deficiencies in industrial relations in the workplace. Those who have served with the Labour Court — now back in mine and other Departments — will tell you that they knew, time and time again, what they could do and what should be done; in many such instances it was not what they would say to trade unions but rather what they would say to management. We will all have had similar personal experience. From my experience I would have to say that often in the more serious disputes it is not trade union officials who create the difficulty but rather the management. That has been a feature of many of our major industrial relations institutions — that there were people who perhaps are never told, who have very little expertise or experience in personnel matters, never mind industrial relations. If one does not talk to people involved in the personnel function, it is unlikely one will form a relationship with them in regard to the industrial relations function.
I spoke recently at an Irish Personnel Management conference — indeed the management advisory report highlighted this issue — to the effect that boardroom management in Ireland tends to confuse the personnel with the industrial relations functions whereas they are two distinct functions. Then, on the other side, if they are not prepared to allocate sufficient resources to the personnel function in order to develop a proper industrial relations function, one breeds difficulties for the other. If one does not get one's personnel management and procedures right, I do not see how one can ever get one's industrial relations function right. That is something that can be done by the Labour Relations Commission through their advisory service. It is envisaged that that advisory service, comprised of a small unit within the commission, will carefully target their endeavours in areas in which they can do something useful.
I accept those advisory points made by all Deputies.
Amendment, by leave, withdrawn.
Amendments Nos. 84 and 85 not moved.
I move amendment No. 86:
In page 16, between lines 20 and 21, to insert the following subsection:
"(5) Where the Court, following consultation with the Commission, is of opinion, in relation to a trade dispute which but for this subsection it would be precluded by virtue of subsection (1) from investigating, that there are exceptional circumstances which warrant it so doing, it may investigate the dispute.".
This amendment arises from our earlier debate. From the arguments advanced then I am satisfied that the Labour Court should have power to intervene, on their own initiative, when exceptional circumstances so warrant. The amendment proposed is modelled closely on the provisions of section 18 of the Industrial Relations Act and meets the requests of all Deputies who raised this matter on Committee Stage.
Amendment agreed to.
Section 26, as amended, agreed to.
Section 27 agreed to.
SECTION 28.
Question proposed: "That section 28 stand part of the Bill."
On the question of the chief executive — I am not about to mention names or anything like that — but I do have a very strong view about combining the roles of chief executives with those of chairmen of bodies, particularly when they are tripartite. I have a very strong view about combining the role of chief executive with the chairmanship of the body, particularly when they are tripartite bodies. Indeed, Deputy Mitchell and I share an experience of a body that recently decided that the chairman of the Custom House Docks Board will not be the chief executive. One will see also from the report on the Employment Equality Agency that the experience of combining the role of chief executive and chairperson in the one person was not satisfactory. One could argue the converse in relation to the Labour Court. In fact different chairmen of the Labour Court combined those two functions. I would agree with Deputy Rabbitte that for the commission to be a dynamic new positive feature on the Irish personnel and industrial relations field, it has to be dramatically different from the Labour Court. If codes of practice are going to be developed, if is it to be a tripartite relationship, the composition will be two, two and two. I have no problem with the section per se but I would like to hear the Minister's comments on this.
I will take the Deputies' views into account as I do not have any hard and fast view. I am aware of the experience of the Employment Equality Agency and other bodies, but there are some other arguments in favour of the office of the chairman and the post of chief executive being held by the same person. I think the Deputy will remember some other agencies within the Department where people argued in the opposite way, but I will take Deputies' views into account.
What is proposed in this section is a little unusual in that the Minister will appoint the first chief executive, which is the usual procedure, but the Minister and not the commission will appoint subsequent chief executives after consultation with the commission. This is most unusual. The normal procedure when a State agency are set up and running is that they appoint the chief executive subject to the approval of the Minister rather than the Minister appointing the chief executive having consulted the board. Does this mean that the commission could end up with a chief executive who has pleased the Minister but is not pleasing to them?
I do not think the Minister would last very long.
I am not sure — the commission may not last very long. This could sow the seeds of dissention later on. This proposal is most unusual and I wonder why this is the case. I think the commission ought to be able to select their own chief executive, albeit with the approval of the Minister. I agree very much with the point made by Deputy Quinn that the idea of combining the role of chairman with the role of chief executive is fraught with danger.
There is no particular hidden agenda. I understood that this was taken from precedents for non-commercial bodies. I will re-examine the matter.
I think the office of chief executive should be held by a young, dynamic and adventurous man who will confront the whole industrial relations personnel management establishment. If that person in his role as chairman comes into a meeting proposing something to the social partners and the Minister's nominees who invariably will be cautious and will try to protect their Minister, irrespective of who it is, it is very difficult for the person to divide his personality into two parts, on the one hand to have enthusiasm of the person proposing and the restraint of a chairman in trying to keep everybody together. It is a very unusual and exceptional personality that can do both those tasks. In areas where they have not succeeded, the organisations have run into trouble so that in general the functions have been allocated to two people.
Has Deputy Quinn any objection to the Minister appointing the chief executive?
I have no quibble with that. I think the Minister should appoint more rather than fewer chief executives.
What normally happens in bodies where the social partners have an input is that the social partners pick the individuals concerned so it is not like another board where the Government or the Minister of the day picks the entire board. The social partners have been given the right by successive Governments, and it is now the tradition, to nominate their own members. The Minister of the day only appoints the chairman. I will re-examine this to see if it is any different in other bodies.
Very briefly, a Leas-Cheann Comhairle, I would like to make a point on section 34.
We will come to that in a moment.
Question put and agreed to.
Sections 29 to 33, inclusive, agreed to.
SECTION 34.
Question proposed: "That section 34 stand part of the Bill."
I do not believe any Minister for Labour should give away the right to appoint a rights commissioner and have no role in relation to the appointment. I formally suggest to the Minister — and if necessary I will put down an amendment on Report Stage — that the commission would provide him with three suitable names to decide on rather than nominating one person. I believe in democracy. One can get rid of Ministers but it is very difficult to get rid of civil servants, with all due respect to the people in this Chamber. We are accountable and I have never had any problems accepting responsibility for appointing people. I suggest that would be a better way to do it.
I think this issue came up in discussions and that is the reason it was changed. However, Deputy Quinn's suggestion is sensible. Nobody could quibble when three names are presented. I think a suitable amendment drafted by either of us would be acceptable.
Does the Minister have power to remove a rights commissioner?
Yes. They are appointed for a fixed period.
That is not empirically true.
I think the answer to the Deputy's question is yes.
Does the Minister have specific powers? I notice that the Minister can inspire resignations. However, I noticed in the provisions with regard to the commission the Minister has powers to remove members of the commission and the chief executive.
Members serve for a fixed term and they are not reappointed.
Three years is very short.
Let us suppose that somebody goes off the rails or becomes as mad as some of our District Justices, can the Minister remove somebody who is causing problems for everybody? I do not have any past experience of it but it could happen. Would the Minister consider looking at whether he should have any of those powers?
Under the Industrial Relations Act, 1969, a rights commissioner may be removed from office by the Minister for stated reasons.
Question put and agreed to.
SECTION 35.
I move amendment No. 87:
In page 18, between lines 24 and 25, to insert the following subsection:
"(3) Reference of issues which are not covered by arbitration procedures for public service employees can be made to a rights commissioner, provided relevant conciliation procedures for such employees have been observed.".
This is a follow up to the point discussed earlier in relation to providing some access for people covered by conciliation and arbitration schemes generally where the mechanism of those schemes is unsatisfactory or where the operation of the schemes is very slow. Deputy Rabbitte has already commented on this matter in some detail and I will not take up the time with it now. This amendment is similar in principle to our proposals in amendment No. 77a regarding access to the rights commissioners. I would like to hear the Minister's view on the matter.
I am glad this matter has been revived under this section. I lost my concentration momentarily on section 23. My amendment No. 77 was designed to meet the same cause and was worded: "Notwithstanding the provisions of this section the meaning of `worker' shall for the purposes of section 35"— which we are now dealing with —"include any officer of a Local Authority or a Health Board". I did not appreciate at the time that we were taking that with a number of other amendments. It is appropriate that it has been revived under section 35 because it is very important. I will refer again to the letter from Phil Flynn, most of which Deputy Quinn read into the record today. I have a covering letter from him which refers to the deficiencies in the conciliation and arbitration scheme, the damage it is doing to morale, festering discontent in the service and so on. He says:
A significant improvement could be achieved through availing of the opportunity presented by the current Industrial Relations Bill. A simple amendment could give access to the rights commissioners to those within the ambit of our scheme.
I would be prepared at this stage to accept the Minister's argument that it is not for him to impose a new bargaining system on the entire public service. If he was to take on board the spirit of this amendment it would greatly release the steam and aggravation that is building up as a result of there being no safety valve for these people who constitute a very large segment of the workforce. There is no independent arbitrator and no forum that can arbitrate on small grievances The rights commissioner is a tremendous service. Phil Flynn is writing on behalf of the group of ten or 12 unions that are involved. I think access to the rights commissioner service would be a major breakthrough and would be greatly appreciated throughout the public services. I would ask the Minister to take the spirit of the amendment on board.
We dealt with this matter to some extent earlier but it is very useful to raise it here. I agree with Deputy Rabbitte what the rights commissioner service has been a considerable success and certainly has met the objectives envisaged in the 1969 Act. The Minister is in a different position from any other individual Deputy. This is not the place, in the context of this Bill, to talk about access to the rights commissioner service at large but rather we should draw it to the attention of the interested parties under the conciliation and arbitration schemes, and indicate the goodwill and open mind of the Minister in this respect. No doubt the Minister would be eager to hear a consensus view from that quarter.
As I have already said on a number of occasions, I would have no objection in principle to allowing public servants covered by conciliation and arbitration schemes to have access to a rights commissioner service provided there was agreement between the parties to the schemes. This is a matter for discussion between the Ministers directly concerned. As with the earlier point, in the absence of an agreement I am not in a position to alter the terms and conditions of the negotiating machinery which is at present in place. These negotiations are ongoing. I see the validity of the point and I see the difficulties that arise on fairly small issues, particularly those that could be dealt with by a rights commissioner. I will bring this point, along with the earlier one of access to the Labour Court generally, to the attention of the Minister for Finance and the relevant Ministers. As I have already said, I have highlighted the points in relation to Phil Flynn's letter on behalf of the Local Government and Public Services Union and the municipal unions.
Obviously, access to the rights commissioner has the agreement of the staff side of the conciliation and arbitration scheme. Is the Minister saying that if the agreement of the official side was forthcoming, it would be possible, by ministerial order, following the enactment of this Bill, to afford that facility?
I do not think that is necessarily the case, and I hesitate to appear to know more than some of the advisers. The definition of worker would have to be changed by order to include different categories. By changing the definition of worker we would also be giving them access to the Labour Court, which would pose much more problems for some of the management side on the question of providing access. We are saying that as an interim measure there should be access to the rights commissioner only. Let us go back to the relevant section where the Minister may, by order, change the category of workers, that will undoubtedly be refused by the Department of Finance, whatever about the other Departments, but in the case of access to the rights commissioners, whose recommendations are not binding, that cannot be as vehemently opposed. I would ask the Minister, that between now and Report Stage, he would not only act as a neutral referee in relation to this but to convey to the relevant Departments what we know to be the position of the staff side. He should, in the interests of good industrial relations — I think he has a view which diplomacy prevents him from expressing in public but he is certainly capable of doing so in private — urge the Departments to which the conciliation and arbitration schemes apply — Finance, Health, the Environment and, to a lesser extent, the Marine and Agriculture and Food — to accept the provision regarding access to the rights commissioner service. We would have to amend the Bill to do this. I do not think the Departments will agree to change the definition of worker but they will more readily accept the provision regarding the rights commissioners.
Deputy Quinn is right. If both sides agree, and there is also agreement by the Department of Finance, by order I can give them access to the Labour Court. If we were to give them access to the rights commissioner only, as has been suggested, that would necessitate a specific amendment to the Bill.
Would such an order giving access to the Labour Court automatically give access to the rights commissioner service?
It would.
But it would involve a major change in the definition of worker in section 23, which would be less likely to be agreed to than would access to the rights commissioner service.
I am taking into account what the Deputy has said, that that issue is a far wider one. We would be talking about giving direct access to the Labour Court to the whole public service in its broadest sense. That carries with it many changes in many traditions and all the questions I raised earlier about the C & A scheme. If the Deputy is talking about the rights commissioner that would be a specific section in the Act. The other matter could still arise for individual sections over a number of years.
Is it not all the more imperative then that we should repeat the appeal to the Minister from this side of the House to consider taking the rights commissioner issue on board for Report Stage? In other words, if it would necessitate an amendment to the Act subsequently, why can we not deal with it now? It is not a particular controversial matter. It will not bring the establishment tumbling down. If one were to broaden the definition of "worker" there are people who would think and would argue that it would do precisely that, but access to the rights commissioner service would not bring the edifice tumbling down on top of us. Why do we not take the opportunity presented to us now to open up the rights commissioner service?
That may not bring the edifice down on the Deputy but it would come down on me if I was to do it without consulting my colleagues.
That will be the day.
With that statement I will now put the question. The question is: "That the amendments set down by the Minister for Labour to section 36 are hereby made to the Bill and in respect of each of these sections undisposed of up to and including section 41, that the section, or as appropriate, the section as amended, is hereby agreed."
Question put and declared carried.
SECTION 42.
Question proposed: "That section 42 stand part of the Bill."
The codes of practice can emerge from the commission itself suggesting that such codes are needed or, in fact, the Minister may request that such codes be proposed. Has the Minister any indication at this stage of the codes of practice that would be proposed? This Bill is a long time in gestation and people have thought it through in advance. Can the Minister give any indication of the areas of the codes of practice that he would request the incoming commission to identify and work on?
This section empowers the commission to draw up codes of practice in industrial relations in consultation with trade unions, employers' organisatins and other interested parties. It also provides for promulgation of codes by the Minister and allows codes to be taken into acount in proceedings before the courts and industrial relations bodies. However, failure to observe a provision of a code will not in itself entitle anyone to take legal action. The formulation of codes of practice will enable good practice in certain areas or on certain issues to be highlighted and promoted, so that these good practices can be adapted for use generally.
Section 11 of the Industrial Relations Act, 1969, gave the Labour Court power to draw up fair employment rules which were intended to fulfil much the same function as codes of practice. The section has not been used on any occasion since its enactment and as a consequence of this section it will be repealed. There are a great number of areas to be looked at, particularly those in which there would be agreement. These areas include: a dispute procedure setting out the procedural stages to be followed before industrial action is taken; provision of information to and consultation with employees on the activities of the undertaking and on decisions likely to affect employees; levels of cover to be provided in the case of disputes in essential services; protection and facilities for workers' representatives in the company. On Second Stage I indicated that at a later stage the commission would consider codes on individual grievance procedures and disciplinary procedures. There are a great number of codes of practice but these are the main ones which I think are long overdue. They are useful and would command a certain amount of agreement and there would be much public support to deal with those areas.
I thank the Minister for his reply. What is the Government's position regarding the action programme for the implementation of the Social Charter? My perception of the present Minister for Labour is that he supports the voluntarist tradition, which I do not. Incidentally, I would prefer to see more directives, that is a legitimate difference point of view, but this will be for the people within the social partnership structure. This will be the only place where the voluntarist tradition can be actively pursued as far as I see it. I do not know whether the Minister would share that view. If codes of practice on access to information in relation to discussing long-term plans — some of the so-called Uredeling directives — are all issues on a broad range of the Social Charter and its aspirations, does the Minister see that this is the area where such advances on social information and protection could be advanced?
I think the action programme will be dealt with differently. There are a number of directives and there are also common positions and regulations. In reply to the Deputy, during recent months we got agreement that the social partners will be consulted two months before the Council on the various initiatives regardless of what status they would have in law. They will have a direct input. In an effort to avoid obstacles that would be encountered after a Council decision perhaps, individual stances taken up at the Council can now be resolved by the ETUC and UNICE in that two month period. That perhaps has delayed some of the adaptation working time and information on some of those more important codes but it certainly helps the voluntarist approach. I hold the optimistic view that the issues of the Social Charter will be dealt with in that form. I would prefer that they be dealt with in that form because it is important that they have as near to unanimity as they can have rather than have a mere individual national State to deal with them.
The point is that the whole concept behind codes of practice or national standards of good industrial practice or whatever can vary, depending on where authorship rests and what is the political climate of the day and so on. I agree that the concept and the idea are good. Perhaps too late in the day we are coming to set down realistic national standards of good industrial practice to provide codes of conduct in several areas. I would like to see subjects included for such codes of practice governing areas like grievance procedures, discipline and dismissal, procedures for multi-union employments, closed shop agreement and transfer of members, shop stewards facilities, voting procedures, dispute procedures, interpretation of agreements and emergency services during industrial disputes. For example, if one could get voluntary agreement to codes of practice in some of those areas it would greatly minimise the extent of disputes that occur. The trouble, to some extent, is in the eye of the beholder.
I instanced the case this morning of the codes of practice that were drafted in the United Kingdom. It is very interesting to see how they have turned out and how they can be more rigorous than the actual law passed by Parliament. I refer to the draft code of practice on trade union industrial balloting which was published by the Secretary of State for Employment in October 1988. The assessment of the institute that I quoted this morning on this matter was pithily put in three sentences. First, they found there were obligations laid upon unions at all five stages of the ballot procedure in addition to those which Parliament had put into law.
Secondly, the code suffered from four main defects, confusion, quietism — I am glad Deputy Hillery is in the House because I am not sure what quietism means — impracticability and bias. It totally neglects "the moral problems and strategic choices facing a union executive" when asked to respond to rank and file demands for support, and that can be quite a dilemma for a union executive faced with very emotive and strongly expressed demands from the rank and file on occasion. Finally, they opined that unless the code is amended to place at least some burdens on employers as well as trade unionists in the interests of a much wider and more balanced concept of good practice, it cannot be expected to be taken seriously by those with a sense of equity and a knowledge of the subject. Factors like this have to be taken into account.
One of my general criticisms is that where the Bill goes out of its way on many occasions to expressly provide for restrictions on trade union manoeuvrability, it rarely, if ever, imposes a corresponding restriction on employers' freedom of manoeuvrability. It would be a very sad day if under a different Minister one found that the existing Bill could be used to devise codes of practice that would have the effect of diminishing the rights of trade unions further and enhancing the power position of employers.
I was proposing to speak before Deputy Rabbitte spoke but now I rise to speak in support of what he said latterly. Much of this legislation imposes duties, limitations and restrictions on the trade union movement and there is very little in it in relation to the employer's side of industrial relations. There is plenty of evidence to suggest that where there are persistent industrial relations problems, where there are repeated strikes at a place of work, bad management is almost always a factor.
On the first day we discussed Committee Stage of this Bill I raised the question with the Minister as to the onus on employers to have within the organisation first of all a personnel policy and a sufficiently senior and staffed section to deal with industrial relations. Of course, that would not be relevant to very small employers, but it is pertinent and relevant to most Irish industry. In too many cases the industrial relations dimension, the whole personnel function, is not given the attention or priority it deserves. Even within the Government service frequently financial considerations are given a disproportionate priority over proper personnel considerations. The Government's own house is not completely in order, and that is not just a recent problem.
The point Deputy Rabbitte raised is valid. We need balanced legislation. The Bill before us by its very nature, I suppose, has to address issues of trade union practices, rules and regulations, but it seems that under these codes of practice there is an opportunity for the commission to address the rights, responsibilities, practices etc., in respect of the workers and of industrial relations. I hope the Minister can assure us that this will be a consideration for the commissioner.
The Minister referred to the 1969 Act and the fair employment rules, and it is disappointing that that legislation which, 21 years ago provided for something similar to the codes of practice, was never really activated. However, there is an opportunity here for a fresh start. The fact that the commission "shall prepare draft codes of practice" gives us grounds for hope. The fact that employers and employees and their trade union representatives will be consulted in advance is vital under our voluntary system in order to develop ownership and, consequently, commitment to the application of these codes of practice. Fair enough, we hope we will have codes of practice on disputes, grievances, discipline and so on.
I would like to mention disclosure of information. When Deputy Quinn was Minister for Labour and I was in the Seanad this matter was discussed more than once in the context of legislation. Employees are key stake-holders in an organisation and more often than not they have the most to lose when organisations fail. I think we underestimate the ideas, expertise and commitment that can be forthcoming if they understand the state of play in organisations. Furthermore, the more advanced and enlightened of employers show that they have copped on to this, as it were, and that even in some of the best managed companies there is total disclosure of information, warts and all, so that employees can gain a fuller understanding of corporate objectives and where people jointly can move together.
I regard this as a particularly important section of the Bill and I hope the Minister and the new commission will do everything to advance the implementation of codes of practice while taking fully into account consultation with both sides so that the codes when put in place will have a better opportunity of full practice.
A number of questions were raised on that. I mentioned a few areas where codes of practice might be desirable and where there could be a certain consensus, but it is no doubt likely that the active commission we all hope to see will have ideas to formulate their own codes of practice. The social partners no doubt will bring their long agenda at an early date. The question of what they can usefully do and, more important, what they have to turn their minds to has been there for a number of years. It is essential that codes have a wide degree of acceptability among the partners because if they were to start to get into difficulties there would be objections from both employers and workers at an early date and the commission themselves could run into difficulty. I agree with Deputy Quinn that development of a code of practice would not be dependent on the achievement of total consensus. If I have learned anything from this Bill, from the safety and health legislation, the worker participation legislation and a few more pieces of legislation, it is that that is not possible, that there is no such thing. Deputy Quinn is quite right. Even in regard to codes of practice there has to be debate. Debate is important in this area. In this debate today we have not had strong line arguments of what employers have been. It is not always the biggest employers who shout the loudest. In fact you can make a great deal of progress with some of the big employers and you can have fairly straight talk with them.
Some of the most lethal animals in the jungle are quite small.
It is not the size of the dog in the fight, it is the size of the fight in the dog.
Figures prove that the large multinationals who came in here under the IDA policy some years ago were encouraged into the trade union movement. Perhaps that does not happen now to the same extent as then. I joined my name to it as much as anyone else here. These multinationals do not have bad records; they have very good industrial relations. Perhaps we do not sell ourselves well enough in that our modern companies, the companies that have had the greatest structural and technological changes and have coped with the cost effectiveness and the restructuring that has been essential in the last 15 years have tended not to have had industrial relations problems. They are still making money but perhaps do not have as many people in employment as they used to have. They do not create problems for the Labour Court, the Minister or the public generally. Smaller management concerns tend to drive the whole system out of control.
I could answer in several ways Deputy Mitchell's question about what employers have lost and gained. I do not want to put restrictions on employers that would entail sanctions and similar restrictions and sanctions on workers. That would not be a good idea. I do not want sanctions other than those in the legislation.
Deputy Rabbitte spoke about procedures in the UK. There is a big distinction in what we are doing in this legislation and I differ from Norman Tibbet. Deputy Rabbitte was referring to ministerial codes of practice. We are talking about the Labour Relations Commission, which is similar to ACAS. Under the code the Deputy mentioned the Minister would arbitrarily decide the way something should be done. That is the Thatcherite diktat approach.
It is a Thatcherite or a Burke approach, depending on the point of reference used.
We may not always have a Keynesian Minister for Labour.
We will not go into that. I accept the arguments which have been made about the chairman and chief executive of the Labour Relations Commission. The Labour Relations Commission representing employers and trade unions could set good standards. Deputy Mitchell referred to personnel. The Labour Relations Commission would be an appropriate body to set out standards and procedures to be operated by management. The employers could not quibble with that. The advisory services of the employer organisations set out these standards. Perhaps they would not always stand over them afterwards when they run into difficulties. It would be quite easy for responsible trade union and employer leaders to put together a code of practice on management and personnel industrial relations functions.
Section 42 (4) relates to circumstances where in any proceedings before a court the code of practice shall be admissible in evidence. Has the Minister any comment on that? What impact will the code have, apart from the fact that it is admissible?
A code of practice can be used in evidence. That subsection enables courts of law and industrial relations bodies to take account of relevant provisions of codes of practice in proceedings before them but does not permit any proceedings to be taken for failure to implement a provision of a code. In this fashion industrial relations bodies and particularly courts of law will have broad criteria to judge good industrial relations practice in particular cases without being bound by the letter of a code of practice. These bodies will also retain discretion whether to take account of a provision of a code or what weight to give to a provision in a particular case. If the Labour Relations Commission were in due course to have a clearly set out code of practice which would be the norm and if one side or the other were not proceeding by that norm, it would be very useful and could stop much of the legal bombardment. Although it is not in the legislation it would carry the strength and power of a code of practice set up under legislation. It will prove to be very important.
Question put and agreed to.
Sections 43 to 56, inclusive, agreed to.
First Schedule agreed to.
SECOND SCHEDULE.
I move amendment No. 95:
In page 24, in the row relating to the Industrial Relations Act, 1946, in the third column, after "Section 43 (1)" to insert "Section 64".
Amendment agreed to.
Second Schedule, as amended, agreed to.
Third Schedule agreed to.
FOURTH SCHEDULE.
Amendments Nos. 96 and 97 are out of order.
Why?
Because they involve a potential charge on the Exchequer.
Also a potential increase in employment, which would be very welcome. While I am out of order, I suggest that the Minister might consider it. He could charge himself with it — I cannot.
If the Deputy had not said he was out of order he would have a better chance of success.
Amendments Nos. 96 and 97 not moved.
Fourth Schedule agreed to.
FIFTH SCHEDULE.
I move amendment No. 98:
In page 27, paragraph 2 (5), line 2, to delete "workers," and substitute ", workers".
Amendment agreed to.
Fifth Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Next Wednesday, subject to the agreement of the Whips.
Report Stage ordered for Wednesday, 6 June 1990.