The House has agreed to take amendments Nos. 26, 27 and 28 together.
Industrial Relations Bill, 1989: Committee Stage (Resumed).
SECTION 11.
Debate resumed on the following amendment:
In page 8, subsection (2), lines 15 and 16, to delete "it is reasonable for those who are so attending to believe" and substitute "those so attending believe".
For a variety of reasons it has been necessary to agree to a guillotine for the processing of the remainder of Committee Stage of the Bill. I greatly regret that. This is the first major Bill before the House in almost 45 years dealing with this topic and it is regrettable that a Bill that is likely to have such an impact on our industrial progress ought to have to be guillotined in this fashion. On the last occasion all sides had agreed that section 11 was the single most important provision in the Bill. It radically alters the law on picketing. Under the 1906 Act picketing was lawful once it was in contemplation or furtherance of a trade dispute. There were no restrictions on the premises which could be picketed nor was there any restriction on who could make up the picket. Restrictions were, as the Minister pointed out, imposed by the courts and, generally, it was necessary to show that there was a connection between those picketing and the employer in dispute, the premises being picketed and that employer.
It was in exceptional circumstances that the courts intruded and then it was only to ensure that picketing was carried out in an orderly and peaceful fashion. However, the new provisions on picketing go much further than anything imposed by the courts. The section draws a distinction between primary and secondary picketing. In the case of primary picketing it is clear that the only premises which can be picketed are those of the employer in dispute, where he works or carries on business. The only employees who can participate in the picket are the workers of the employers concerned. Inevitably, a number of practical problems will arise from that provision. It is usual in many industries for pickets to be augmented by other members of the trade union concerned and, on occasion, from members generally. Often it is necessary to enter into a dispute with an employer who is not employing members of the union in order to prevent that employer working outside the terms of a particular industry-wide agreement. I have formed the view that this amounts to a very serious restriction on trade union rights and significantly shifts the balance of power which has obtained up to now between employers and trade unions.
Amendment No. 26 in my name specifically addresses the question of the test that must be applied where workers are picketing a secondary employer. The changes introduced by the Minister now require that workers so picketing must have a reasonable belief, at the commencement of their attendance and throughout the continuance of their attendance, that the employer has acted in a way calculated to frustrate the strike or other industrial action by directly assisting their employer who is party to the dispute. It will not, therefore, be enough for the workers to honestly believe that such is the case, the belief must also be reasonable.
There is an important distinction here between the criterion applied by the court as to whether workers honestly believed that the secondary employer was contributing to undermining the dispute or whether an objective criterion is applied by the courts requiring this reasonable belief on the part of workers. This invites the involvement of High Court Judges in determining the tactics of a trade dispute. Section 11 (2) is so worded and rigorous in terms of its application to the trade union movement that it is unreasonable to expect people involved in a trade dispute to have more than an honest belief that the secondary employer is acting in a manner damaging to or interfering with their dispute, especially when one sees the context of the total section which not only requires trade unionists picketing the secondary employer to have this reasonable belief but also to have a belief that the employer has acted "in a way calculated to frustrate the strike or other industrial action by directly assisting their employer who is party to the trade dispute in the first instance".
It is completely unreasonable to require trade unionists to be able to support a claim that the secondary employer was acting in a way calculated to frustrate the strike. I gave several examples where other employers could act to frustrate the strike but it would be impossible to prove that the secondary employer so calculated. I instanced the contract sector, specifically the example in this House. If a contract catering company tenders in the marketplace and gets the contract for providing the catering service to the Members and staff of this House — and subsequently refuse to employ the existing staff who have been doing the work for many years — there is no way it can be proved that the employer was acting in a manner calculated to directly assist the existing employer. Far from it, he was acting in his own commercial interest and it would not be possible for the workers in the canteen to prosecute a trade dispute against the new employer under this section.
I should say — in case anyone in the House is not familiar with it — that the entire tradition, convention and practice in the trade union movement is in the proliferating contracts in which they operate today. They cannot prevent another contractor in any area — security, cleaning or catering — from tendering but they say that the workers have a right to follow their work. In other words, if the security for this House was on a contract basis and if another contractor managed to win it for a subsequent period of five years or whatever, then he should employ the existing staff. That is the basis on which the trade union movement operate and if the new contractor does not employ the existing staff it is possible for the members concerned to prosecute a trade dispute for employment against the new employer. Under the 1906 Act it is permissible to prosecute a trade dispute for employment and in this case the workers would be seeking to hold on to their own jobs.
However, it is not possible as this section is framed and I ask the Minister to accept the fact that contracting and subcontracting are becoming more common in our economy. They are a growing feature of the structure of the workforce and to put so many workers outside the protection of this Bill would be wrong because they are most vulnerable and insecure. I have personal experience of dealing with the contract area in a range of services and I know that workers have no security.
For example, the committee responsible for the restaurant facilities in this House might decide that they are not satisfied with a certain aspect and put it out to tender. They might also consider that the cost is prohibitive and no trade union can interfere with that decision, which is quite proper. However, in the event of a new successful contractor not employing the existing workers, the workers will go out the gate but they may not prosecute a dispute because, if they do, they will not have the immunities conferred by this Bill.
I feel no less strongly about this now than I did on the last occasion. The record shows that my union colleague, Deputy Bell, felt equally strongly. We are both talking from experience and it is not a partisan view because workers are entitled to join a trade union and to have its protection if their employment is threatened. Accordingly, I plead with the Minister to consider his position.
I wish to thank Deputy Rabbitte, Deputy Mitchell and Deputy Quinn for agreeing to take Committee Stage today. This matter was debated for four days on Second Stage, we will have had two days on Committee Stage, which is quite lengthy, and we still have Report Stage. There will also be a long debate in the Seanad. I thank the Opposition Deputies for their co-operation otherwise it would not have been possible to finish this Stage today.
Perhaps it is a sign of the times that we must accept that the Finance Bill, the Social Welfare Bill and the Bill on the environment take precedence with the Whips because of the many pressures being exerted on them. Nonetheless, I appreciate that we had more or less four days devoted to Second Stage debate and now another full day on Committee Stage, not to mention Report Stage. Because of the number of arguments advanced and cases made, bearing in mind other conditions prevailing, probably we will be unable to reach Report Stage until the end of this session, but I can assure Members that we will examine closely amendments tabled and arguments advanced. I can give the House an assurance that I will also talk to my Opposition colleagues because I anticipate that it will be difficult to get sufficient time to debate Report Stage. Nonetheless I want to thank them for their co-operation and assistance to date.
Deputy Rabbitte has expressed strong views on this section. I want to reiterate some of the points I made on the last occasion and to make some additional ones. The subsection deals with secondary picketing. It has three main aims, the first being to clarify the existing legal position so that the law, once again, constitutes a guide to conduct, and which has been highlighted in a number of recent court cases. The second aim is to regulate secondary picketing more closely and to define "secondary picketing" in clearly understood industrial relations terms rather than engagement in legal monologues in an endeavour to examine an industrial relations issue.
The precise legal position in regard to secondary picketing is unclear but is generally thought to be as set out in the case of Ellis v. Wright in 1978 when it was held that, for a picket to be lawful, there must be a “clearly discernible connection between the premises picketed and the dispute in the sense that the employer or workman affected by the picket is directly connected with the dispute”. This interpretation limits the extent of the protection given to picketing in section 2 (1) of the 1906 Act but is still sufficiently vague to allow for considerable confusion to arise as to what constitutes legal secondary picketing in particular cases.
The people participating in this debate will understand the difficulties that continue to arise in this area. This is especially so in proceedings for interim and interlocutory injunctions. The danger with this lack of clarity is that the law will fall into disrepute and no longer act as a guide to conduct. Therefore, the clarification provided by this subsection is extremely important to industrial relations practice.
Another aim of the subsection is to regulate secondary picketing more closely and not to extend it. The broad "clearly discernible connection" test of case law will be replaced by a more precise statutory statement on lawful secondary picketing. The subsection provides that secondary picketing will be lawful if, but only if, it is reasonable for picketers to believe that the second employer has acted in a manner calculated to frustrate the strike or other industrial action by directly assisting their employer who is a party to the trade dispute. Merely filling a gap in the market left by a strike-bound employer will not give rise to lawful secondary picketing.
The subsection also changes the basis on which the connection between the first and second employer is judged in secondary picketing — from a mixed company law/industry relations basis to a straight industrial relations basis. The present test can give rise to complicated questions of company structure, such as who controls the company, whether one company is legally related to another in such a way as to be able to bring pressure to bear on the first company to resolve a dispute. The legal relationship between companies — especially in large groups of companies — will not be obvious to picketers or strike organisers. However, under the provisions of this subsection picketers will have a simpler question to answer — which we believe to be extremely important to them — more directly related to their industrial relations experience, that is: "is it reasonable to believe that the second employer is acting to frustrate the strike?" Thus the law will become a better guide to conduct with workers having a clearer idea of what is and is not lawful in a particular dispute.
I do not think it is necessary for me to go into any great detail in this House with regard to the number of difficulties experienced with people taking both interim and interlocutory injunctions and the case on which they base such injunctions. This will present workers, trade unions and indeed their legal advisers with a much clearer question. We must remember that, within the trade union movement today, there has to be resort to legal advice on a variety of issues, that is the reality, but, in a court hearing, an objective test would apply to the reasonableness of the picketers' belief that the second employer acted directly to frustrate a strike or industrial action. It would not be reasonable for people merely to have any view; they must have an objective view. If people believe they have a reasonable case, they must put that case. If they have such a reasonable case then they are justified in their secondary picketing action.
With regard to amendments Nos. 26 to 28, inclusive, I might reiterate that Deputies will be aware that secondary picketing was one of the most controversial issues which arose in the preparation of this Bill, and Deputy Rabbitte was correct in so saying. There has been pressure exerted on me from the employers side to outlaw such secondary picketing completely. They advanced probably one of the strongest arguments ever on the part of employers in the course of discussions on this and previous legislation on industrial relations.
The work previously undertaken endeavoured to completely outlaw secondary picketing. As I have indicated on many occasions my view is that that would be going too far. If secondary picketing were to be completely outlawed employers would be afforded wide scope to circumvent the effects of legitimate industrial action. While employers have a right to endeavour to circumvent the effects of any strike directed against them, in a democratic society this cannot be an absolute right and must be balanced by the right of workers to bring economic pressure to bear to further their legitimate claim. That is something about which I feel as strongly as anybody else. Therefore, under the provisions of the subsection only employers who directly involve themselves in a dispute, by acting to frustrate a strike, will be subjected to secondary picketing. In addition, if secondary picketing were completely outlawed we would be presented with a massive problem vis-à-vis enforcement.
Therefore I have adopted a middle ground approach and stipulated what I believe to be a fair approach to secondary picketing, that is, that it be permissible where it is reasonable for those workers picketing to believe that the second employer was acting directly in a way calculated to frustrate a strike by directly assisting.
Were I to accept these amendments, as tabled, it would lead to a loosening of the overall position, when we would be moving away from the objective test of having "a reasonable belief in the concept of direct assistance," central to the proposal to regulate secondary picketing in a balanced manner.
Deputy Bell dealt with this part of the debate in my absence on the last occasion. I have one or two questions I want to put to the Minister. Everybody shares the view that, if we can render the law as explicit as possible, room for judicial interpretation will have been reduced. It is our concern that judicial interpretation, so far as is necessary, be minimised.
Accordingly, would the Minister inform the House what would be his and his advisers' test of "reasonable belief and directly assisting their employer" if an employer, the object of a secondary picket, were to seek an injunction preventing that picket from interfering with his business, if his legal team were to challenge the validity of the picket and the immunities such picketing would enjoy under the provisions of this Bill in general? If they were to go to court, contending there is not reasonable belief in a given case, that they were not directly assisting, if the union representing the workers were then to say: "we believe you are assisting", how does the Minister anticipate the court might interpret such a plea? What would be the range of interpretation prevailing in such circumstances? The object of Deputy Rabbitte's amendment — which I support — is to afford secondary picketers as wide a scope as possible within a relatively compact framework which is what this subsection, if amended, would do. I ask the Minister to tell us why the adjective "reasonable", as distinct from the word "belief", is contained in the Bill and what is meant by the term "directly assisting".
It is important that we include the term "directly assisting" in the Bill as the interpretation of the word "assisting" is so loose as to make it meaningless. As I outlined earlier, I do not believe that one could argue that an employer filling a niche in the market is acting in a way calculated to frustrate a strike but if the second employer is actively involved in the transferring or switching of orders from one employer to another he is acting in a way calculated to frustrate a strike. As Deputy Rabbitte pointed out, both the workers and trade unions are aware of what the normal practice is in an operation and who is supplying the company. On the first day of a strike they will very quickly be able to see who is acting in a way calculated to frustrate the strike.
Deputy Quinn asked in what way will the court interpret the section. In the courts the employees will have to outline their reasons for believing the employer is acting in a way calculated to frustrate the strike. I do not think they will have any great difficulty in doing this. The courts will have to decide what constitutes reasonable belief if any worker or union official goes into court to argue that it is reasonable for him to believe that a second employer is acting in a way calculated to frustrate the strike. It is important that we bear in mind in our discussions on this matter that there has to be an objective test and that someone should not be able to decide off the top of his head that even though everything appears normal in the enterprise with no one acting in a way calculated to frustrate a strike, that someone might be frustrating the strike. The employees would have to show some grounds for believing that an employer was acting in such a way.
I appreciate the Minister's difficulties but would he be of the view that the union representing those on a secondary picket would have to produce documentary evidence to support their belief, and that it would not be reasonable to believe something if there was no written evidence?
I do not think they would have to produce written evidence but rather to show reasonable grounds, with particular reference to what the position was prior to and after the dispute. Deputy Rabbitte has convinced us to look very closely at the wording but two issues arise. It was argued that the word "directly" should be deleted and that the section should read ".... frustrate the strike or other industrial action by assisting their employer who is a party to the trade dispute, provided that such attendance is merely for the purpose of peacefully obtaining ...". However, if we were to do this, the section would be too loose. Deputy Quinn has asked me a straight question. It is my view that a union official or worker will go before the court to indicate the normal practice in a company and the position since the commencement of the strike and it is hard to see, given the way the section is worded, how the courts could find against the workers.
I must say I find the Minister's position very unconvincing. I am not surprised by this because he cannot make a cogent credible case for the argument he is seeking to sustain. For example, he has not commented on my amendment, amendment No. 27, which as you, a Cheann Comhairle, reminded us at the outset we are also discussing, which would require the workers to be sure in picketing a second employer that that second employer is acting "in such manner as to have the effect of frustrating the strike by either directly or indirectly" assisting the employer with whom they are in dispute. What could be more rigorous than that and how could it be considered loose? It is as certain and as precise as one can get; in other words, the workers would be required to show in court, if it were tested, that a secondary employer is acting in such manner as to have the effect of frustrating the strike either by directly or indirectly assisting the employer with whom they are in dispute. That is very precise.
The Minister has made much play — quite rightly, as it is very pertinent — of the Ellis v. Wright case but let me refer him to what Kerr and White had to say on the Ellis v. Wright case on page 306. They make the point, as the Minister has done, that there would have to be in the opinion of the court a clearly discernible connection between the premises picketed and the dispute in the sense that the employer or workman affected by the picket is directly concerned with the dispute. Tony Kerr goes on to comment that it is not exactly clear what is meant by the word “connection” and states that Mr. Justice Butler indicated that it would be found in the fact that the employer in dispute had a controlling interest in the company which was picketed or in the fact that one or more employees of the employer in dispute visited or attended the premises picketed in the course of their employment. Therefore the court's interpretation in the Ellis v. Wright case is not nearly as restrictive as what the Minister is seeking to do here. Kerr admits, on page 308, that the legal status of secondary picketing is, therefore, uncertain. He states:
Despite the plain wording of section 2 (1), the Irish courts tend to regard it as unlawful. The ability of employees to take secondary action, however, may be essential in certain circumstances.
The Minister should take that point on board. He continues:
The application of pressure on a third party, with whom the union has no dispute, to induce that person to cease doing business with an employer with whom the union does have a dispute is a very effective way of furthering a dispute if the primary action has been totally successful. No matter how widely the union spreads the dispute the purpose remains the same. All the union seeks to achieve is the equivalent of a fully effective strike of the primary employer. All the union asks is that others act as if the employer were in fact closed by the strike.
Again, I ask the Minister to note this point. Perhaps it is a case of quoting scripture to suit the devil's purpose. Nonetheless he is an authority on this issue of secondary picketing and he says that "to curtail secondary action, therefore, is to deprive workers of an element of their strength, to make them enter the economic struggle with one hand tied." I believe it is a big bad world out there at present and employers are becoming more ruthless in the marketplace and this legislation will put workers into the struggle with one hand tied behind their backs. The Minister did not address himself at all to the question that I raised about the most vulnerable section of the workforce, contract workers. He repeated today what he said last night, and I quote: "Merely filling a gap in the market left by a strikebound employer will not give rise to lawful secondary picketing." I agree that will be the position if this Bill becomes law.
That is the problem.
That is the problem and it is wrong, given the examples in the contract areas. Does the Minister really believe, or do his senior advisers believe, that if we had a dispute in An Post and a courier does some of the work, say, delivers parcels — we have seen other examples of this, for instance, the threat by PAMBO to come in during a CIE dispute — in that situation, the courier would be acting to undermine the dispute, but no action could be taken because the courier company is not assisting An Post but filling a gap in the marketplace as the Minister sees it in this legislation. If anybody seriously thinks that the postal workers would accept that situation, they are not living in reality. I quoted a former Minister for Labour, Deputy Patrick Hillery, before when he made the point that he removed a Bill from this House because he did not think it would have the voluntary allegiance of the trade union movement. It is not practical to think that the bus workers in Dublin would sit idly by while the private operators came in and decided to run the profitable routes or similarly the postal workers would accept couriers coming into An Post. Workers would not accept that. It is a fundamental flaw in the Bill. I would not mind if I were asking the Minister, as my colleague, Deputy Toddy O'Sullivan, has done, to delete the phrase "by directly assisting their employer who is a party to the trade dispute". I toyed very much with doing precisely that, but I recognised that stood little chance of winning the Minister's confidence, so I opted for alternative wording, on which, as I explained on the previous occasion, I had expert assistance. The phrase we came up with is: "the employer acting in such manner as to have the effect of frustrating the strike by either directly or indirectly assisting the other employer". I cannot see in all reasonableness why anybody in the House would be opposed to that, because one would have to be able to prove in court that it was having the effect of frustrating the strike, and that seems to me to be very onerous.
On a lighter note, I meant to tell the Deputy earlier that I am a member of the committee which decided to employ contractors in the Oireachtas. Obviously, the Oireachtas is not an example of the bad employer Deputy Rabbitte referred to, because the Oireachtas committee decided to get separate contractors in addition to the existing workers and allow other contractors come in. However, I accept that this would not happen in every case, and I am not arguing that point.
In regard to the Ellis v. Wright case, there is no certainty that that position will not be overturned and I do not want to fall into that.
I accept that the courts are becoming involved more and more, and the courts are involved in the employment appeals tribunal and every aspect of industrial relations, but the idea, as I outlined in detail previously, is to keep the courts out of industrial relations and to clear the position. That is the whole purpose of the Bill, and particularly the sections linked to injunctions. I think that is a valid point which cannot be overlooked.
Deputy Rabbitte asked that I re-examine the question of secondary picketing. We already have had a long and detailed discussion last night lasting a number of hours on these amendments which centre on this question. I have argued that I am satisfied that the test of having a reasonable belief and also the requirement about the direct assistance of the second employer are central to the subsection and that they should be retained. With regard to the arguments that Deputy Rabbitte has outlined against the word "calculated", the legal advice available to me is that the word does not have the restrictive meaning attributed to it by the Deputy. Deputies Quinn and Bell have also argued on this aspect, and I am prepared between now and Report Stage to see if we can provide an alternative form of wording.
I welcome that but, of course, the objections from these benches have not sprung merely from the use of the word "calculated" but also from the very important area of "direct assistance".
I am not saying it was the only matter, but last night the Deputy felt that the word "calculated" would have a very strong interpretation when read in conjunction with the other sections and I accept that is a valid point.
I take the point, and I welcome the Minister's readiness to look at it again. However, the question of workers having to prove that the secondary employer is directly assisting the employer is extremely offensive and places the most onerous obligation on the workers. It is also the most radical change and we have to look at this.
The Minister said in the course of an earlier reply — and I wrote this down — that he feels that workers can fairly readily see another employer frustrating them and that they have a good instinct in this matter. I agree with that: workers do know but workers knowing something and being able to prove it are two entirely different things.
That is why the word "reasonable" is there.
That is precisely the reason that I am arguing in amendment No. 26 for the test to be that of honest belief. On the last occasion I produced evidence from the new Labour Party document in Britain where their spokesperson, Mr. Tony Blair has come up with the concept of honest belief as being the measure or yardstick that ought to be applied. Who is going to interpret the question of reasonableness and, as Deputy Quinn has asked, what kind of objective evidence will have to be advanced in order to convince the courts on that point? I agree that workers have a good nose for this type of situation, but in a world of multi-group companies, where production can be switched from one location to another, where work can be contracted out and ownership transferred and so on, I believe it is inordinately restrictive and I think the Minister should now try to address that area as well.
While there is a great deal of merit in the questions being raised by Deputy Rabbitte, there are also a great many dangers. Therefore I think we will have to be very careful. As regards the possibilities cited by the Deputy, of PAMBO, the private bus operators filling a gap created by an ongoing strike in Bus Éireann or Dublin Bus, or of a courier doing extra business by taking advantage of a strike in An Post, it would certainly be very dangerous if secondary picketing was permitted in all such cases. There are cases where there is no collusion among employers but if one employer takes the business of another — for example, there is poaching by one employer against another — if one takes advantage of the difficulties of the other, that is a different kettle of fish from the case where a strike is taking place in one company and that employer goes to another person in the same business and asks him to supply his clients while he is unable to do so. That is collusion between employers. We have to differentiate between the two cases.
It is exactly the same.
It is not the same. They are two very different cases. The case of collusion between employers to frustrate a strike should be covered by secondary picketing and we should take every reasonable step to tighten the provisions in this regard. It is a different matter where there is competition between employers. For example, if one sausage manufacturer supplies 20 per cent of Superquinn's needs and another provides 60 per cent, and the manufacturer supplying 60 per cent goes on strike, if the other manufacturer fills the gap by providing 80 per cent of the goods during the strike, is that person to be the subject of a picket and is that picket protected by law? I am interjecting here to highlight the fact that these are two different cases. On the one hand, there is collusion between employers and on the other there is competition between them. I accept that the actions of both employers may have the effect of upsetting workers, particularly in the latter case I mentioned.
I think Deputy Mitchell misunderstands the point. In the example he has given of the two sausage manufacturers, this argument does not apply because if the market is taken up by the second sausage manufacturer, he is in no way assisting, directly or indirectly, the first employer. He is taking his business and good luck to him. There is nothing the trade union movement can do about that. It is not relevant to the argument because he is not assisting the first employer and therefore it does not apply, but what does apply is the kind of example I have given. In the case of a transport dispute, for example, there is an outcry from the public — it can be a very emotive issue — PAMBO, as they indicated on the last occasion, would want to take over some of the more profitable areas of the service. The workers employed by Córas Iompair Éireann, the generic term, Dublin Bus or whichever of the three companies are concerned, could do nothing under this Bill to protect their employer because PAMBO are not acting to assist CIE; they want to get a share of the action in the hope that — just as the Minister, Deputy Burke, changed the rules of the ball game in broadcasting last night — the Minister for Transport will change the rules. He has PD tendencies and would be more likely to change the rules in transport, and in that case the workers could do nothing about it. I instanced the case of An Post. There is no way the postal workers would accept a situation like that. It would be inoperable.
The cases of the sausage manufacturers and An Post are not very different. Deputy Mitchell's point would equally apply to An Post. Let us take the example of the motor bike couriers who developed the service when there was a protracted postal strike in 1979. Under this legislation postal workers would not be able to put a secondary picket on these companies. Is Deputy Rabbitte arguing that they should be allowed to do so?
Absolutely.
He is saying that if a company are in dispute and elements of different industries take up part of that business, the employees can go out and picket these industries. Is that not against the point the Deputy is making about somebody else in the marketplace taking the business when one company is on strike? That is happening in a dispute at present. Advertisements are being transmitted on the radio to try to take work away from a company on strike. Is the Deputy arguing that the picketers of that company should be able to go around the country picketing individual firms?
There is a distinction.
I am only asking the Deputy to clarify what he is arguing.
It is not an off the top of the head reply. There is a distinction between the operation of the free market and the private sector. The position is, and will continue to be, somewhat unclear. There is very little the trade union movement can do in the case where one sausage manufacturer takes up the slack. They can try, and at present they are free to do so——
They do not do that in practice, and do not want to do so.
They do not do so and, in my opinion, that practice will continue, but there are a number of areas in the economy where there are what commentators like to call monopolies — for example, public transport, the postal service, energy supply and the communications industry. It is accepted that electricity is provided by the ESB, that the postal service is run by An Post and, maybe with reservations in some quarters, that transport is provided by the generic company, CIE. PAMBO have tried to get in on the scene. In that case busmen, would prosecute their trade dispute, including putting pickets on PAMBO, and I am saying they ought to be permitted to do so. They are allowed do so at present and we should continue to allow them to do so.
I suspect there is a danger of getting very deeply into this area and I suggest that we come back to the concern of people on this side of the House. Whatever law we enact should, as far as possible, coincide with what is acceptable practice. We should not bring about a situation where if we make the law too tight in order to satisfy one side of the social partnership, the FIE, we put constraints on workers in respect of their legal rights to picket, particularly in regard to secondary pickets, because they will ignore it and picket anyway. An injunction would then be brought against them, they would be found in contempt of court and would end up in jail. That would bring us back to 1969 and the ESB dispute. This is a very finely-tuned, balanced area and I accept that there is no given wisdom on it. An attempt is being made to strike a balance and I accept that is what the Minister is trying to do.
I accept, too, that the Fine Gael Party do not articulate out loud the FIE interest sections that they undoubtedly represent in private, so, in fact, there is a one sided dialogue in this House. I do not mean that in any scathing way to Deputy O'Keeffe. The trade union social partnership position is being articulated in this House by Deputy Rabbitte and me whereas the FIE view is not being articulated out loud. If the Progressive Democrats could bring in some of their backbenchers we might get the kind of counterbalancing debate which the Minister has had to listen to in private.
Our concern has been, and is that under the interpretation of this proposed section, if a group of workers in a particular circumstance — Deputy Rabbitte has referred to PAMBO — decided to put a picket on another company because they reasonably held the belief — although they may not be able to demonstrate it in documentary form — that their primary strike was being frustrated by the actions of the secondary employer, under this law, that secondary action would be considered to be illegal and would not enjoy the protection under existing law. My concern is that if these people continue to picket they would be in contempt, and the Minister is aware of what would happen after that, because the secondary issue of imprisonment of the picketers would override the primary issue of the original strike. That is our concern but I do not want to dwell at length on this issue.
Another point I would like to raise is the actual place of business, registered offices, etc. which the Minister has probably dealt with already. If anything new has been said on Committee Stage which has not already been addressed in private or in the various discussions, the Minister should give reasonable consideration to that and respond to it on Report Stage.
I did not intend to intervene but as somebody who is not an expert in industrial relations I find this debate fascinating. I am standing in for my colleague Deputy Mitchell. There are a couple of points I would like to make. Well researched and very valid arguments have been raised by both sides on this issue. From a general point of view it suggests to me — I know this is a broad point but I think it is worth making — that the way we conduct our Committee business does not really allow for the full development of these arguments. This is a Bill which has many sections where many such arguments could arise. As a Member of this House I am making the point that we should consider better ways of conducting Committee Stages of Bills rather than have the whole House tied up debating what are very important points but yet, as a consequence, no other business can be done. I would be very much in favour of having a much more formal arrangement where Committee Stages of Bills, particularly important Bills such as this, could be debated in very great detail at considerable length outside this Chamber and then brought back to the Chamber for formal approval.
In intervening where angels might fear to tread I must be very careful. I want to make it clear that I do not represent the employers or the unions in making what I think might be a few objective comments nor have I had an input or a briefing from either side.
The Deputy is trying to diminish the legal profession but he has an interest in that profession.
I plead guilty to that charge. Now that the Minister has raised that point, the manner in which the section is drafted — I appreciate the balance which the Minister is trying to achieve — does introduce, in the main, the question of what is reasonable. My experience as a lawyer is that "the reasonable man" is the person who, in legal terms, has a long and honoured history over the centuries. Generally what is acceptable in legal terms is what is found to be acceptable to this mythical person, "the reasonable man". The courts have a history——
The man on the Clapham omnibus.
The Deputy has it absolutely right. That has been a criterion that has been found to bring just and fair solutions in legal cases. The core of this section would appear to provide that secondary picketing is all right provided, it is reasonable. Obviously, in legal terms we so provide. Somebody has to interpret whether it is reasonable. I accept the point made by both Deputy Rabbitte and Deputy Quinn that it is probably better that there is as little interference by legal decision in industrial relations as possible, but at the end of the day if we are providing a statutory form there must be some forum that will ultimately interpret the Statute. Having gone through all industrial relations procedures there must be such a forum to provide such interpretation and that forum can only be the court.
Having listened to the argument, which I found fascinating, about the sausage manufacturers and the transport providers and so on I would like to make one further general point. I do not think it is in the employers' interest, in the country's interest or in the employees' interest to have monopolies — whether those monopolies be in the State sector or in the private sector. I mention that in the context that Deputy Rabbitte talked about certain possibilities that may arise following industrial disputes in monopoly suppliers. Whether the employer in dispute is largely a monopoly supplier to the market in the public or private sector the legislation should not be framed to meet the situation either of the employer or the employee in such a monopoly.
Essentially, what the Bill provides is that secondary picketing should be permissible in certain circumstances. It is an accepted part of industrial relations that primary picketing is generally in order. We are reaching to the periphery when we are talking about secondary picketing with the possible consequence of doing extreme damage to another employer who may improperly or unjustly have a secondary picket on his door. In that case it is proper that we should be very careful to lay down what is permissible from the point of view of secondary picketing. I take the Minister's point that the present imprecise state of the law is not helpful to industrial relations. It is better for us to be clear on what is or is not permissible.
We then come to the fine tuning between protecting an innocent employer from having a secondary picket on his door and protecting the workers where an employer is not innocent but who may be in collusion with the original employer in the trade dispute. Taking all those circumstances into account, it seems that the balance struck by the Minister is fair and reasonable. On that basis, and trying to be as objective as I can, I do not think the case made by Deputy Rabbitte and Deputy Quinn is well proved on this issue.
I had to stand in here for my colleague Deputy McCartan on the Larceny Bill recently and I felt somewhat similar to the way Deputy O'Keeffe must be feeling now. Unfortunately, I never had regard for the profession when I was outside the House, but apparently there is some expertise one acquires in the business of industrial relations if one spends long enough at it. I will take some of the general points Deputy O'Keeffe made but really they do not address the question. The reality of Irish industrial relations is such that, confronted with the challenge of modern, complex business, if you accord the right at all to workers to withdraw their labour it can be now so constrained by a combination of the complexity of modern Irish business and by the law that you are effectively in certain circumstances taking away that right. I would like to deal with the points and maybe we can come back to the essential point.
Deputy O'Keeffe asked why we should seek to apply the subjective test when the objective test of reasonableness and of the reasonable man has stood us well down through the years. I agree with that, but I would not have sought to introduce amendment No. 26 were it not for the remainder of section 11 (2). It is the extremely rigorous requirements that are imposed on trade unionists that cause me to seek to intrude the test of honest belief on the part of workers as being adequate. This whole business of having to be able to prove that the secondary employer calculated to frustrate the strike, that he was directly assisting the first employer, can all be very difficult in the world of business out there, in the world of modern and advanced technology. If a worker goes into the witness box and is prepared to swear that he has an honest belief that that employer was undermining the dispute, then that ought to be acceptable. However, I am prepared to accept what Deputy O'Keeffe has said and I think I hinted this to the Minister on the last occasion. If this test of what the man on the Clapham omnibus thinks is to be the yardstick of the man on the Tallaght bus, I am prepared to withdraw amendment No. 26 in favour of spending the rest of the time available to us on amendment No. 27 which is really the crux of the issue. However, withdrawing amendment No. 26 is leaving quite a difficult task for the trade unions in a litigation situation. Be that as it may, what is really important is that the Minister is effectively ruling out the prospect of secondary action in so many cases based on section 11 (2) and he is excluding an entire category of vulnerable workers from the possibility of prosecuting a trade dispute at all.
Legally.
Legally prosecuting a trade dispute.
That is the point.
The Minister has not addressed himself to this issue at all. Surely it is not fair in an economy where tens of thousands of women — they happen to be women predominantly — who, because of unemployment in the household and disadvantaged circumstances have to go out as contract cleaners or into the contract catering business. I accept the good standards applied by this House the Minister referred to earlier, but every year in the outside world the contract now changes. Two people can appear on the scene overnight and establish a contract security company. There is no registration, no licensing necessary. One contract cleaning company are seeking to undercut the other in order to get the contract and get a foot in the door. It has happened in many cases — I take one example I was involved in personally, the UCD dispute — that an outside company came in, took the contract, did not employ the women and they prosecuted a dispute for jobs against the new employer. They may not do so under the new Bill. I do not think that could have been the Minister's intention.
I would have some sympathy with the Minister if I were seeking to excise the offending phrase, but I am not. I am prepared to live with the situation and I think the ICTU would live with it if the provision was that you had to be able to prove that that secondary employer was acting in such a manner as to have the effect of frustrating the strike by either directly or indirectly assisting the primary employer in the dispute. That is reasonable and fair and I cannot see why there should be objection to that.
May I take it that the Deputy is speaking to amendment No. 27?
Amendments Nos. 26, 27 and 28 are being taken together.
Acting Chairman
They are being taken together so you are speaking to amendment No. 27.
Yes. I have indicated that I am withdrawing amendment No. 26 and concentrating on amendment No. 27. They are being discussed together. I am welcoming the fact that the Minister has undertaken to consult with his advisers concerning what might be the position in regard to the term "calculated", but I suggest the more offensive part of the phrase is this obligation on trade unions to have to prove that that secondary employer is directly assisting the primary employer. That would be impossible to do in some circumstances and very difficult in many, and would have the effect of ruling out the immunities entirely for a large section of vulnerable workers.
In regard to what Deputy Quinn said, naturally enough, regardless of what is said outside the House, I accept totally that we have to argue again inside. Not just the FIE but a number of employer bodies surfaced for the purpose of this Bill but they were all united on one thing which was to say that secondary picketing should be outlawed completely. They were unanimous and inflexible in that view and that is their stance on this issue. I have to give credit to Deputy Quinn — he has done the softening process over a long period on this — that it was beginning to be evident that secondary picketing would not be allowed. We were into compromise and into recognising our peculiar industrial relations ways, and whether they are right, wrong or indifferent, they are there and they will outlive all of us. Those matters have to be taken into account.
Reasonableness and objective tests are necessary because employees would have to have some grounds for their beliefs. There must be some test and it cannot be on the basis of some striker who believes he is seeing things all over the place, that, for instance, during the night when there were ten guards outside the gate of a plant at which there was industrial action, he saw ten lorries being driven out laden with materials to be used somewhere else and that the following morning some 150 picketers should be sent to pick up those materials. You have to have an objective test. I am sympathetic to the argument, but there must be some acid test on this. There is no point in giving controls and powers on the basis of off the head decisions. The legislation is to deal with disputes between workers and their employer. Contract workers, like any others, can have a dispute with their employer and place a picket at the location where he carries on business.
I know what Deputy Rabbitte is talking about with regard to contract workers, but let me clarify in my way what we are talking about. If a contract company are cleaning the windows or brick work of Dáil Éireann, the workers can have a dispute with the employer and can picket not only the employer's head office but Dáil Éireann as well. We must not give the impression that a contract worker in a dispute has not got these rights to picket.
What happens if somebody else comes in to take the contract?
The Deputy is not very clear on that point.
I am being crystal clear.
The Deputy is referring to the UCD dispute, but that is another argument. Workers can picket a contractor's headquarters and the place where they are working. They have that right.
If the contractor has lost the contract there is no point in picketing.
That is another argument. A contractor may win a 12-month contract to clean Dáil Éireann but at the end of the 12 months he may have to tender again and may lose that contract. That is a different argument. We are now arguing that because contractor X has lost the contract and contractor Y has got it, contractor Y must take the workers of contractor X, otherwise the workers of contractor X can picket the place. That is a far broader issue.
I have dealt with and watched many disputes in which Deputy Rabbitte has been involved and I have great respect for his professional expertise as a full-time trade union official, as I have for his work in this House. Is it the case that people tendering unsuccessfully in the open market can be faced with a dispute? There are all kinds of other problems. If this is followed through it will end up in the Supreme Court with arguments about the rights of people tendering for contracts. It is a massively complex area.
I have discussed at length the wording of section 11 (2) which is a very important section. I asked specifically about the meaning of the word "reasonable" in this context. Was it a term that could be used only in the way that a High Court Judge, the Attorney General or a legal draftsman would use it? The answer is that it is something considered reasonable in the view of the ordinary Joe Soap.
It is the judge who decides what the ordinary Joe Soap thinks.
The courts have decided that "reasonable" means in Irish law what the ordinary Joe Bloggs interprets it to be. In this case secondary picketing would be permissible where Joe Bloggs feels that the employer is directly frustrating the strike.
Deputy Rabbitte asked why we should not remove the word "directly". Practically all sides have said that if I do so I may as well remove the whole thing. That is why the word is still there and I am reluctant to accept the amendment. "Directly assisting" must be read with the word "reasonable". I considered the argument advanced in respect of the word "calculated" and it is a good argument. I checked with the parliamentary draftsman and the Attorney General in respect of the other words and I am advised that they should not be removed. I do not want to be unfair in saying that I will look at it on Report Stage. I can make progress in respect of the word "calculated" but not otherwise. That is the position.
Acting Chairman
I would remind the Minister and Deputies that the debate on these sections will conclude at 1 p.m. There is a number of amendments to sections 11 and 12.
I am painfully aware of that but this is the nub of the Bill. The Minister is now doing a snow job on the arguments I have advanced.
I let the Deputy advance them for a long time.
There is no point putting on the record of the House that contract workers may prosecute a primary dispute. We all know that. We are dealing with section 11 (2) which is about secondary picketing. I know that contract workers may prosecute a trade dispute but——
I got the impression the Deputy was trying to say contract workers have no rights to picket at their place of work and in the field. It is a whole new area if the workers lose their jobs.
That may be because of less precision in the language from these benches. We do not have the assistance of the high powered, considered, confident views of the Minister's advisers in pre-drafted responses to points made. One has to think on one's feet.
The point I am making, however imprecisely I am putting the case, is that we are dealing with a section on secondary picketing. The Minister has raised questions about the commercial appropriateness of contractors undercutting other contractors and so on, but he has conceded the point that under this section contract workers may not prosecute a secondary picket against an employer in the circumstances I have outlined. Because the Minister has conceded that point I believe it is incumbent on him to see what can be done to include them in this section. I did not come in here — but maybe I should have — with a list of the kind of cases I am talking about.
I understand what the Deputy is talking about.
I have given examples. I am talking about the position in Government Departments, for example, the recent dispute at the Department of Agriculture and Food in Castlebar where the employer to whom the cleaning contract was given, did not employ the cleaning women who had worked for the previous contractor for the previous five years. The practice in the trade union movement is to ensure, just like dockers in the old days, that workers follow their work. Otherwise, those people will have no rights at all. Very often part-time workers do not have any rights under protective legislation. The Minister has to take this and a number of other points on board.
Deputy Bell dealt with this issue on the last occasion. He adopted a broader argument than just the position of contract workers and dealt with multiple companies. For example, a holding company with a number of subsidiary companies, associated companies or companies in which they have a stake holding, can easily transfer production or business to circumvent the terms of the law. I am now conceding that the Minister can retain his objective test of what is reasonable in the circumstances, but the remainder of the clause is offensive to the trade union movement.
The Minister said he is satisfied with the way the Judiciary has applied the objective test and so on, and that he thinks it is fair. I want to again refer him to the foreword of the book by Kerr and White, written by one of our former most eminent judges, Brian Walsh, when he was a member of the Supreme Court. In his preface to the book he says it is clear, in his view, that in many respects the trade unions enjoy a privileged position under the law, and he goes on to develop that point. The point I am making is that it would be foolish, and carrying the good temper of this debate too far, to pretend that the judges are broadminded when it comes to dealing with trade union disputes. The former Judge Brian Walsh would have been regarded as one of the most liberal members of the bench when he was there, but generally speaking one could not make that argument.
If the Minister leaves in the requirement that a trade union must be able to show that a secondary employer is directly assisting the first employer it will lead, first, to permanent litigation in contentious disputes, and second, it will not be possible for the trade union in many cases to prove that they have a reasonable belief that that secondary employer is directly assisting the first employer. This legislation modernises and codifies much of the existing industrial relations legislation and it would be a great pity if it tilted the balance to the extent that is being argued here.
A great many rank and file activists and shop stewards do not even know the Bill is being processed. With all due respect to our friends in the media who comment on politicians not spending very much time in the Chamber, they do not spend a great deal of time in the Chamber and when it comes to reporting the detail of legislation, one is likely to get more attention for being thrown out for some stunt on the Order of Business. Shop stewards do not know this legislation is going through the House and they do not know the implications it will have. Some of the Minister's advisers, whom I respect, do not know as much as they think about the private sector. This is not the Civil Service or the public service. There is a ruthless world out there in the private business sector and many workers will find themselves on the wrong side of the law if this provision is enacted.
Hear, hear.
As I said earlier, I am prepared to look at the word "calculated" and other points which have been raised by the Deputies. I have given the Deputy the advice I have received and I do not think I will change my mind, unless it is for some other reason. I do not want to misinform the Deputies.
I welcome the Minister's honest and frank response and that he is not going to fob us off until Report Stage. I am not surprised at his response but I want to put my welcome of it on the record.
Deputy Toddy O'Sullivan has put down an amendment which proposes to delete the term "by directly assisting their employer who is a party to the trade dispute" in section 11. Amendment No. 27 attempts to meet a half way position. We will have to have a vote on this amendment because it is the view of my party and the Congress of Trade Unions that the section, as drafted, does not reflect the desires and wishes of the employees, and some of the employer organisations, and is such a variation from what is current legal practice that in time there will be a series of actions of a secondary picketing nature which will result in legal action in the courts and people being put in jail. The Minister or his successor will have to deal with a situation where the original industrial dispute will be totally superseded by the fact that five or six people were put into jail for contempt. As we all know from the Ranks Mills dispute these people will not be able to get out of jail unless they purge their contempt. This will lead to the martyrdom of industrial workers and the emphasis will shift from the rights and wrongs of a particular industrial relations dispute to the fundamental right of workers to protect the only thing they have to sell, which is their labour.
This is the stuff of numerous learned journals and stories within the labour movement history. I am not a bit surprised the Minister confirmed that a number of employers would like to ban totally secondary picketing. A number of employers would like to ban picketing and trade unions per se. The developed corporate sector——
I was taking about organisations.
The point I am making, which is a good one, is that we are trying to make a law which will cover the worst possibility rather than reflect the general situation. The general situation will not be the problem; we have to have regard to the worst scenarios because they are the cases that will end up in court. This is a bit like, in engineering or construction design terms, having to design for the extreme or maximum load rather than the normal load because from time to time the normal practice will be bent, overloaded or overweighed. It is my considered view, having sought expert advice and having been briefed by a number of people, that if this section goes through it will represent a middle point. From a debating point of view it probably reflects a fine line between what the employer organisations and the representatives had to say to the Minister on the one side and what the Congress of Trade Union officials and others — the Minister did not confine himself exclusively to those — had to say on the other side. Does it, however, represent a middle point in regard to practice out on the ground? We will have to wait and see.
I would suggest to the Minister that the phrase "directly or indirectly assisting" in amendment No. 27 gives a fair degree of cover and goes some way towards meeting the original wording. Reasonable belief in indirectly assisting an employer to frustrate a primary strike seems to go a long way down the road of rationality in allowing somebody to enjoy legal protection in a picket. The reasonable belief that there is indirect assistance being granted by a second employer to frustrate the strike of a primary employer seems to get very close to what is considered acceptable practice by the trade union movement in relation to secondary picketing.
This matter has been around for a long time and that must be respected. In the light of this formula of words, however, I would ask the Minister to think again about how he could deal with this on Report Stage. I accept that deleting "direct or indirect" altogether as we were proposing is extreme. It effectively recognises the status quo, which a number of employers' organisations would regard as totally unacceptable, but inserting “directly or indirectly” is quite different from having no adverb in front of the word “assisting” at all. I think the Minister is unwise in this because, notwithstanding his numerical strength in this House, unless this is challenged we will end up with people being in contempt of court for refusing to obey an injunction of the court because what they currently believe to be their rights as a result of successive events in Irish labour history will no longer be legal. People will be curtailed in their actions. They will find that when they behave as they have behaved in the past what was legal six or seven years ago is no longer legal and that will create a problem of its own.
I am conscious of the points made by my colleagues and that they have taken soundings and discussed this issue. I am conscious also that all wisdom is not on my side.
Deputy Rabbitte made a point about contracting. I am not saying he did not put his argument fairly but we must be clear about this aspect. This is not something that happens as a matter of course, although I accept that there are abuses on the part of some employers who create substantial difficulties, and I am in no way trying to discount that. Like most Deputies I continue to get representations about the odd practices of some employers. It is my intention as far as I can, with advice from my advisers, consultations and so on, to create a better climate for industrial relations. There would however be a difficulty in establishing a new principle of rights to picket an employer to force him to offer employment. Deputy Rabbitte put the argument eloquently and very forcibly but if one is to follow the line of argument through, does it stop with the contractor? If the contractor loses a particular contract with resulting loss of jobs for employees, can those employees then put pressure on him through strike action and pickets, whether primary or secondary, to offer them work? That is a new concept.
At present people do not have the right to picket in order to get themselves a job. I have not dwelt on it enough to come to a conclusion whether that would be a desirable practice in itself. It has happened in the past but in the context of present practices it seems to be going very far. I would have to ask, what about the position of the second employer's own employees? I am aware of such disputes because I also worked where there were too many contractors who would always get into this difficulty. If we are to enact legislation we must get away from the security and cleaning areas. I know that in the general hospital system, for example, it would be bad practice to have too many contractors in laboratories and in radiology departments, for occupational therapy and so on. This is something that should not be building up in the service but it is there, and what happens if these contractors are let go because some central person has lost a contract? Will other people have to fight for the rights of the people who have been let go? I respect the points made by Deputy Rabbitte but they would have knock on effects in many other areas.
Inserting the word "indirectly" has the same effect as removing the word "directly". I cannot accept that the word "indirectly" is clear and concise. All I can say is that the word "directly" is central to the subsection. It helps strike a balance between outlawing and controlling secondary picketing. I do not wish to say any more than that because it may be misleading. However, I will look closely at all arguments made during the debate because I accept that I do not have all the knowledge. I will give a commitment that I will return to this matter at a later stage. I want the provisions of the Bill to last the course of time, like others involved in the debate, and I agree with Deputy Rabbitte that a small number of Members have devoted a lot of their time to the debate.
Deputy O'Keeffe suggested that a Committee of the House should deal with the Bill. Informally, we expressed the view that this was an appropriate debate to be held in Committee. The view was expressed that we should lock ourselves into a room for five or six weeks and deal with the provisions and I have no doubt that the Opposition spokespersons would have been prepared to do that but the structures of the House would not permit us to do so. For that reason, we must debate the issues back and forward in the Chamber. I am giving a commitment to come back on the word "calculated", although the legal advice to me is that it does not have the restrictive meaning attributed to it. The arguments by Deputies on that aspect were good and I am prepared, between now and Report Stage, to consider an alternative form, if it is necessary.
Acting Chairman
As it is now 1 o'clock, I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendment set down by the Minister for Labour to section 11 is hereby made to the Bill and that section 11, as amended, and sections 12 and 13 are hereby agreed to."
Question put.
The Committee divided: Tá, 70; Níl, 61.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Briscoe, Ben.
- Browne, John.(Wexford).
- Callelly, 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.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lyons, Denis.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Rourke, Mary.
- O'Toole, Martin, Joe.
- Power, Seán.
- Quill, Máirín.
- Roche, Dick.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Wyse, Pearse.
Níl
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Boylan, Andrew.
- Bradford, Paul.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Crowley, Frank.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard.
- Farrelly, John V.
- Fennell, Nuala.
- Ferris, Michael.
- Finucane, Michael.
- Flanagan, Charles.
- Gilmore, Eamon.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Enda.
- Lee, Pat.
- Lowry, Michael.
- McCartan, Pat.
- Browne, John(Carlow-Kilkenny).
- Bruton, John.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- McCormack, Pádraic.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Mitchell, Gay.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- Noonan, Michael. (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Owen, Nora.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Shatter, Alan.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Stagg, Emmet.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies J. Higgins and McCartan.
Question declared carried.
I spoke to the Ceann Comhairle a few minutes ago and he gave me permission to seek to raise on the Adjournment the issue of St. Helen's national school, Portmarnock, where the parish priest has been served with a civil bill because the Department of Education have not paid all the grant money to the school.
The Ceann Comhairle will communicate with Deputy Owen.
SECTION 14.
I move amendment No. 41:
In page 9, subsection (2) (a), line 9, to delete "or other industrial action".
In accordance with procedure, and having regard to the fact that a certain number of amendments on the Order Paper were not taken because of the guillotine, it is my intention to re-enter them on Report State of the Bill.
This is a consequential amendment because of the refusal of the Minister to accept a redefinition of "industrial action". As the House knows, the provisions of section 14 lay down procedures for balloting of members in respect of strike action. There is no difficulty whatsoever with the concept of having a secret ballot in respect of strike action or certain kinds of industrial action.
I presume we are taking amendments Nos. 41 and 43 along with a number of other amendments listed. I presume we are talking collectively of deleting the phrase "or other industrial action". Would I be correct in assuming that that is the procedure?
It is proposed that we deal exclusively with amendment No. 41 and relate that to the announcement made when we were dealing with amendment No. 13; the Deputy will be familiar with that. At that stage we talked about taking amendments Nos. 42, 44, 47, 49, 51, 54; also amendments Nos. 13, 41, 43, 46, 48, 50 and 53 together.
I shall not detain the House because we are subjected to very tight time constraints.
If the Minister requires a trade union to hold a ballot of its members directly concerned in any kind of industrial action — as set out in subsection (2) (a) — I believe such will not be practicable. My concern and that of my party throughout this entire legislative process is to devise legislation which, at the end of the day, will be perceived to be practicable as well as being just, proper and balanced. Its practicality is of overriding importance. We must remember that we are talking about human industrial relations in the workplace. Though many of us would like it to be otherwise, people do not always follow a logical path or approach. In the heat of the moment, in a set of given circumstances, people may react spontaneously in a way that is neither rational nor logical.
It would not be productive to have a repetition of the debate that took place on the definition of "industrial action". The Minister is well aware of our concerns in this regard. To stipulate that henceforth all such action will have to be subjected to the holding of a secret ballot presupposes that all such action will be premeditated. We contend that some such action will not be premeditated, that any dispute could be more readily resolved by recognising that those types of action should be excluded from secret balloting.
I know it is the considered view of the Minister and his Department that, notwithstanding all of that, at the end of the day, the provisions of section 14 will be internalised within a union, that failure to observe those provisions does not confer any right on anybody other than somebody who is a member of the union concerned; that these provisions will not be subject to the type of British Conservative raids on particular unions, including sequestration and so on. I fully accept that we are here talking about a totally different approach, that the way in which the British Conservative Party or unions have behaved does not influence this legislation, is not relevant to our circumstances; I am quite happy about that.
If we do not amend the definition of "industrial action"— and we know what is the Minister's argument in relation to this — we will be conferring a right on somebody who happens to be a member of a trade union to take out an injunction against that union. We must envisage circumstances in which a strike may occur within a particular company, say, in the industrial estate in Tallaght or elsewhere in the Dublin region, within a single union shop or factory where, say, the only union involved is SIPTU, the largest union in the country. Let us suppose the employer concerned — who wants to frustrate the strike, or to take out an injunction preventing the union acting on it, or in some way get at the union because they failed to hold a ballot on the type of spontaneous action I have just described — telephones his brother in, say, Connemara, Donegal or Kerry, who is also a member of SIPTU, who may be a part-time farmer, creamery worker or a full-time gombeen man who happens to be a member of a trade union which, in many instances, will not be beyond our cultural traditions, for private considerations, not communicated by telephone but whose intent was made clear to the brother in Connemara. The brother in Connemara then decides to take out a legal injunction against the union. I am citing deliberately a very extreme case. But it is an extreme case which must be used to test the generality of the provision. Is it possible that the circumstances I have described could occur? If such is possible then the probability is that somewhere within the next 20 years it will occur. If there is the probability of such happening, we should examine what might lead to its happening in the case of it being unreasonable. I contend it would be regarded as unreasonable if the Minister does no consider changing the definition of "industrial action". We have absolutely no problem in the trade union movement with secret ballots, about the week's notice, the method of balloting and so on; broadly speaking that is common practice within most unions today and does not present a problem. The manner in which this is proposed is something we can examine later. If the Minister fails to change the definition of "industrial action" and it includes everything, including the right of sanction against a union for failing to hold a ballot on that form of industrial action, resulting in a loss of production to the employer, has any other member of that union anywhere else in the country — under the provisions of the law as they would obtain if section 14 is not amended — a right to seek an injunction against the union on the grounds that they failed to comply with their own rules.
The difficulty with this section is that it is somewhat like motherhood and apple pie; we are all in favour of secret ballots. Indeed one would run very serious risks were one to maintain that it was otherwise. But what is being sought here is to enshrine in law what is the practice within most unions throughout the country. There is no tradition here of the car park meeting except in so far as it relates to unions with headquarters in the United Kingdom where a different tradition obtains. That does not cause any difficulty for the trade union movement here. Of course, what the Minister is seeking to do goes far beyond that. It is very regrettable that he would not be happy with circumstances in which he requires unions to enshrine in their rule books the provisions stipulated here for a secret ballot before a primary dispute can take place, I do not see why that is not adequate. I contend that to include the term "or other industrial action" is to invite all kinds of trouble and, in my view, will not be operable within the private sector. I contend it will be very quickly proven that to seek to impose a ballot in all circumstances in which industrial action is contemplated — no matter how minor — is simply a nonsense. One of the unions who have written to me makes the point that issues such as working to rule, working to agreement, resisting overtime and so on are all classified as industrial action. It is simply not practicable to talk about imposing a requirement of a secret ballot in all cases of minor fractures of industrial peace.
Of course the definition of "industrial action" is unbelievably restrictive. In the private sector, in particular, the Minister — and I think he so indicated when we debated the definition of "industrial action"— said he would be prepared to take another look at this question within the private sector in which there are frequent minor fractures of industrial peace, when the impostion of the requirement of a secret ballot would lead to unofficial industrial disputes. In such cases, on the one hand one would be confronted with circumstances in which a stoppage or industrial action of whatever form is involved, is extended by virtue of the imposition of the detailed procedures that must be complied with here——
I do not like stopping Deputy Rabbitte in full flight but I would draw his attention to the fact that we have now passed the time when we adjourn for lunch.
No, I understood we had no sos today, that we had a brief to go right through.
I am sure the Deputy does not want to deprive me of my lunch.
There is a sos at 6.30 p.m.; that is why I thought we were going through.
Progress reported; Committee to sit again.
Sitting suspended at 1.35 p.m. and resumed at 2.30 p.m.