I ask for the attention of the House as we want to recover the time we lost.
Industrial Relations Bill, 1989: Report Stage.
Because of the loss of time, I think it has been agreed between the whips and party spokesmen that instead of finishing the Industrial Relations Bill, 1989, at 1.30 p.m. we will finish it at 2.30 p.m.
That is agreed.
We are living in times of great formality. The Deputy appreciates we have already agreed that the House will not sit from 1.30 p.m. to 2.30 p.m. How then can we do business?
The Whips are meeting shortly to discuss this issue and I will come back with the new order for the House.
We have learned our lesson that we cannot have orders off the top of our heads. If we have already ordered that we will break from 1.30 p.m. to 2.30 p.m., how can we decide to do business during that time? We will proceed and discover, as we move ahead, what is proposed.
Sweetness and lightness prevails, a Leas-Cheann Comhairle.
Amendment No. 1 in the name of Deputy Jim Mitchell.
I move amendment No. 1:
In page 7, line 2, to delete "for that person" and substitute "in that employment".
This is a drafting amendment. If the Minister thinks it is necessary I would be grateful if he would accept it but if he does not think it is necessary I will not press it.
What is being provided for in the Bill is the objective definition of "employer" for the purposes of defining the parties to a trade dispute. An employer must be a legal entity or person and for this reason the use of the term "in that employment" would not be appropriate. It is not possible to define "employer" by reference to a particular sector or job. Therefore, I cannot accept the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 7, line 5, to delete "person" and substitute "worker".
While a dispute must be between employers and workers the subject matter of a dispute could relate to persons who are not workers. An example of this would be workers who would have a dispute with an employer over a proposal to engage outside contractors who might not be workers as defined in the Bill. It is necessary to retain the word "person" to cover this type of situation.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 7, to delete lines 12 to 18 and substitute the following:
"`industrial action' means any action taken by any number or body of workers, acting in combination or under a common understanding, which involves a partial refusal to work or a refusal to carry out work or provide services normally carried out, or provided, within the terms of their contract of employment, as a means of compelling their employer to accept or not to accept terms or conditions of or affecting employment, but does not include a refusal to carry out work or provide services which, if carried out or provided, would frustrate a strike or industrial action engaged in by others;".
I will await the Minister's reply to this amendment.
This is one of the most important and outstanding amendments. We have gone for the minimalist approach in this construction. I am unhappy with the definition of "industrial action" which is central to the Industrial Relations Bill. It is imperative that we agree, with as much precision as possible, to the definition of "industrial action" because it recurs throughout the Bill. I am unhappy that we have not managed to make more progress on this issue.
The Minister indicated on Committee Stage that he had taken on board many of the arguments made here and he would come back on Report Stage having reflected on the matter. It is unfortunate that he has not managed to redraft this definition. It is important to put on the record of the House that this is one of the areas of the Bill with which the Irish Congress of Trade Unions are very disappointed and concerned about its implications.The definition as it now stands is so wide as to encompass the most limited form of collective action goods or pro-include a refusal to handle goods or provide services where this is necessary to avoid frustrating a strike or industrial action taken by others. No matter how minor or short the duration of the industrial action it will be encompassed in the definition as it stands.
Deputy Mitchell tried to deal with this issue by putting forward an amendment on Committee Stage in which he referred to major industrial action. I think all Opposition parties are agreed on the implications of proceeding on this basis. We believe it will shift the balance of power in Irish industrial relations, will become inoperable in many areas of the private sector and, as a result, there will be a rash of unofficial disputes which might have been avoided. There is no practical way that trade unionists on the factory floor will be able to make contact with their own union head offices and take a secret ballot under the provisions of section 14 for minor industrial action. Because it is impractical and therefore becomes inoperable, workers will take their own unofficial action.
Unofficial disputes will also be the consequence of it because trade union executives and management committees will now have to tip toe through the tulips. When they have an application in circumstances like this, they will have to err on the side of caution because of the danger of immunities being removed. The result is the workers will say that if they have to go through the procedures laid down here for minor matters, they will take action anyway. That will be the consequence and it is very regrettable.
Seeing that we have gone for the minimalist approach, I urge the Minister to accept this amendment. It falls a long way short of what would satisfy me but at least it protects the position of other workers who may arrive at the gate and find themselves confronted by a picket. It will also protect people such as those delivering post, oil or fuel since they will not be considered under this legislation as having engaged in industrial action. Traditionally the Texaco driver who finds himself confronted by a picket can go back to his depot without damaging or frustrating the strike and will not lay himself open to any action. I ask the Minister to reconsider this important area.
We discussed this point on Committee Stage and I do not wish to labour it, except to reiterate my concern that the Bill as drafted is loose and may have some of the adverse effects to which Deputy Rabbitte has adverted. I should be grateful if the Minister would take up the points we are making.
I said on Committee Stage that I would give further consideration to the points made regarding the definition of industrial action and I have done this at great length with my advisers and officials. I said there would be difficulty in moving from the present wording to an acceptable alternative. It is not possible to find an alternative.
During Committee Stage I expressed the view that it would be very difficult to formulate a definition of industrial action which would distinguish between what might loosely be termed "major" and "minor" forms of action. I undertook, however, to re-examine the matter and to consider also an alternative definition proposed by Deputy Quinn.
This suggested definition has been carefully examined and I have obtained legal advice on it. I cannot accept the definition for a number of reasons. First, it is very imprecise and confusing and, secondly, it would not achieve the intended aim which was to distinguish between "major" and "minor" forms of action.
Leaving aside the internal contradictions and inconsistencies which the proposed definition contains — for example, what is a "partial" refusal to work and what are "services normally" provided — the definition is very restrictive and excludes many forms of primary action as well as all secondary and tertiary action. I doubt whether Deputy Quinn would really advocate such a broad range of exclusions which could embrace many forms of very serious and disruptive action, from the scope of the balloting provisions.
I would also make the point that a definition such as that proposed by the Deputy might not be in the best interests of the trade union movement. The provision in the Bill in relation to injuctions applies only in the case of strike and industrial action as defined. They would not apply to any forms of industrial action falling outside these definitions.
It is important to bear in mind the principle which underlies the secret balloting provisions in the Bill, namely, that workers have an entitlement to a democratic say in any decision as to whether they should become involved in a strike or other forms of industrial action. I do not think that anyone would disagree with the principle or that anyone could seriously argue that secret ballots should be confined to strikes. Other forms of industrial action can be equally serious and disruptive.
Having established the importance of the basic principle of democracy through secret ballots, we enter into a very dangerous territory if we start to qualify this principle by saying that secret ballots should be required for some forms of industrial action but not for others. What Deputies have been suggesting is that "minor" forms of action should be excluded, but when is industrial action minor? Are we talking about minor in terms of the issues involved, the numbers involved or in terms of the effects of the action? A dispute over a minor issue could have very major effects.
The definition provided for in the Bill is clear and unambiguous and entirely consistent with the principle that workers be entitled to ballot before being asked to become involved in a dispute. The definition is also linked to the provision relating to injunctions.
It has been said that the definition will cause problems for trade unions in the day-to-day conduct of industrial relations. Working understandings will operate and the likely scale of any problems is being much exaggerated, as most people would agree. The arrangements in the Bill will be satisfactory and workable.
I have found alternatives to a number of amendments but there is not an alternative in respect of this amendment. I would ask Deputies to see that in the case of industrial action a workforce are entitled to have a ballot. That is all we are asking. In the major dispute at Waterford Glass the workers can manage to have a ballot fairly speedily. In their case they probably have a show of hands in the traditional manner but under the provisions of this Bill they could have a secret ballot.
I assure the Deputies who argued in favour of this amendment that following extensive discussion the definition in the Bill is felt to be best fitted to stand the test of time.
Deputy Rabbitte raised a point which concerns me. If a picket is placed outside an industry or a service and an oil lorry driver decides not to pass it, he could be deemed under the Bill to be in breach of the law. If a number of people on a sub-contracting basis — which is every widespread now — decided to stay out of work in support of the main bulk of people on strike, will they, under this section, be deemed to be breaking the law? I should like the Minister to reply to those two points.
As I said previously, in a case like that it is a matter between the person and his employer. It is not necessarily the fact that he is breaking the law which has to be taken into account but the view which is taken by the employer who is not involved in the dispute.
It could be argued that he is in breach of the law. Could the existing definition prevent a union from instructing their members not to pass a picket in the kind of circumstances which Deputy Bell outlined if they were not involved in the strike or had not participated in the pre-strike ballot? In those circumstances, arguments could be advanced to support the contention that the driver and his helper in the case which was outlined are engaging in industrial action as provided for under the Bill.
The Minister did not refer to the text of the amendments from the Labour Party and myself which put forward a definition which would leave intact the requirement of a trade union to ballot their members before action is taken, such as a work to rule, an overtime ban, etc. We were very reluctant to do this on Committee Stage but it leaves the obligation on the trade union intact and in such a manner as to exclude any action designed to avoid frustrating the effectiveness of a strike by workers who were not directly involved in it. Will the Minister address that point in the amendment?Indeed, the amendment falls a long way short of what we on these benches would have liked and gets away from the "major and minor dispute" which the Minister addressed in his reply.
This point was discussed at some length and the widely held view is that, if only one worker is involved, it is a matter for him to discuss the issues with his employer. This does not necessarily mean that he is in breach of the law. There is also a substantial argument that if a company or firm are asked to take part in the industrial action the workers are entitled to ballot. If a group of workers were not involved but were supportive of the strike, under the definition they would be required to have a ballot because they would then be participating in industrial action. As I said, that would not be the case if only one worker was involved, it would be up to him to discuss the issue with his own employer.
The Texaco driver and his helper would have to have a ballot.
That refers to one driver but if it was the case that Texaco would not supply oil to major industrial plants, the Texaco workers would have to have a ballot because they would be involved in the dispute.
I am sorry, I must intervene at this stage. The Chair is a respecter of commonsense, reasonableness and the spirit of what we are doing. However, we must all appreciate that in recent times there have been lectures from all sides as to the sacred position of Standing Orders. I must remind the House that Standing Orders provide that, on Report Stage, the mover of the motion is entitled to speak a second time. Nobody else is, the mover of the amendment has the right to reply and we cannot have any other contributions.
My apologies.
The Minister is not the only one, we have all taken the licence which I have given, bearing in mind that an emergency would not arise from it in respect of this debate. However, precedent is precedent and quotations of precedents or exceptions can militate against the Chair. As far as I am concerned, we will now live by rules and regulations. What is the position in relation to amendment No. 3?
I wish to reply briefly because, regrettably, we will have to press this amendment. The Minister has confirmed the serious change which it will bring about in picketing policy in the operation of industrial relations from the point of view of the trade union movement.It is a matter to which the Irish Congress of Trade Unions take grave exception and it will be discussed this afternoon at their conference. It will shift the balance of power in industrial relations in favour of the employer and it will make the conduct of industrial relations, from the point of view of the trade union movement, on occasion extremely, difficult. Many trade unions will now find it very difficult to do their business effectively on behalf of their members because, even where it is not clear that the balance of power has shifted in favour of the employer, it is at least open to the employer to argue that, under this definition of industrial action, such and such an action by workers not directly employed in the plant are engaging in industrial action even though a ballot had not been taken.
Traditions which had been sacred in the trade union movement for 100 years are being abrogated, including the tradition where you did not pass an all-out picket of congress or frustrate or damage the effectiveness of a trade dispute by your colleagues. The situation now is that you must either pass the picket or have made all these elaborate pre-strike ballot arrangements which will not be practical in a great many cases. This is so central and important to the Bill that, if the Minister cannot see his way to taking on board the import of what we are saying, regrettably, we will have to press it to a vote.
I am surprised that it has not proved possible for the expert back-up to devise a reconstruction of the clause in question. They should have been able to come up with something which would have been acceptable having regard to the fact that we are talking about the kind of Bill which requires the assent of both sides of industry.
I have allowed this amendment to be the exception and, accordingly, I will allow the Minister to make a final comment but it will not happen again.
I agree that this is the most important amendment to the Bill and the one on which we spent most time in trying to work out a solution. I want to make two important points in relation to it. How the clauses will be operated between the unions, and the working relationships, will work themselves out. The second point is very important from the point of view of the workers. We must remember that the immunities are not withdrawn even when a ballot has not been held. That is very important, particularly in regard to what could happen in this case. The benefit of the ballot is that the clauses in section 19 (1) and (2) would hold and that would mean management not being able to get the ex parte and interlocutory injunctions. The immunities are not withdrawn even where a ballot has not been held. In my efforts to find a resolution I think that is an important point to make.
An bhfuil tú sásta nó an gcuirfidh mé an cheist?
Níl me sásta. Cuir an cheist.
Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 76; Níl, 71.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Burke, Raphael P.
- Calleary, Seán.
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Haughey, Charles J.
- Hilliard, Colm.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kitt, Tom.
- Lawlor, Liam.
- Andrews, David.
- Barrett, Michael.
- Brady, Gerard.
- 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'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Níl
- Ahearn, Therese.
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Barry, Peter.
- Bell, Michael.
- Belton, Louis J.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard.
- Enright, Thomas W.
- Fennell, Nuala.
- Noonan, Michael.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Owen, Nora.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ferris, Michael.
- FitzGerald, Garret.
- Flaherty, Mary.
- Flanagan, Charles.
- Garland, Roger.
- Gilmore, Eamon.
- Gregory, Tony.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Enda.
- Lee, Pat.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Mitchell, Gay.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- Ryan, Seán.
- Shatter, Alan.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine.
- Timmins, Godfrey.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies Howlins and McCartan.
Question declared carried.
Amendment declared lost.
Amendment No. 5 is an alternative to amendment No. 4 in the name of Deputy Pat Rabbitte and I propose, therefore, with the agreement of the House to take amendments Nos. 4 and 5 together. Is that agreed? Agreed.
I move amendment No. 4:
In page 7, lines 31 and 32, to delete "availed of by custom or in practice in the employment concerned, or agreed procedures," and substitute "provided in a collective agreement in the employment concerned,".
The Minister and Deputies concerned with this Bill are well accustomed to my arguments on this section. My colleagues in the Opposition parties who did not initially support the points I made on Committee Stage have joined me in making arguments that highlight the importance of this section and, as a result, the Minister has gone some way to taking on board the substance of the points raised. However, there remains a very serious defect in section 9 (2) as it remains and, notwithstanding the probable acceptance of amendment No. 5 by the House, my complaint on this section is that it effectively removes the sanction of withdrawal of labour from an individual worker in certain circumstances.
For the sake of this argument I will confine myself to instancing the case of an individual selected by his colleagues in an employment for the purpose of organising a trade union in that employment but who is then dismissed by a vindictive or anti-union employer. Under the law as it stands, that worker would have the solid support of his colleagues as expressed in a vote for industrial action and the mere threat of the sanction of industrial action would, 99 times out of 100, in practice cause the reinstatement of that worker. That will not prove to be the case under this legislation for the two reasons briefly mentioned by the Minister said that if there are Stage. The Minister said that if there are no procedures, there is no problem, one can go ahead without a ballot. However, he also said that if the procedures are exhausted one can go ahead and strike. Both limbs of the Minister's argument are fatally flawed.
Let me take them in reverse order. The Minister said that if the procedures are exhausted one can go ahead and strike. Technically he is correct but, in practical terms, he is wrong because having regard to the procedures which have to be complied with it is simply not possible for an individual worker in the circumstances I have described to come back some four to seven months later to get the support of his colleagues and prosecute a trade dispute. The Minister has improved that aspect somewhat by proposing two measures. We will deal with the first of these when we come to amendment No. 6 which will enable the Minister to preclude one of these procedures being appealed to the civil court. He refused to insert it on Committee Stage and I thank him for agreeing to insert it now. What this means is that the appeal to the civil court will be cut off with the result the process will be shortened somewhat.
In the normal course of industrial life the procedures to be laid down, including access to a rights commissioner and the Labour Court, will take a number of months to go through. I am aware from my own experience that it is not practical to go back to the employee to say "do you remember me? Four months ago I was sacked when I tried to organise a union here. I have lost my case at the Labour Court for whatever reason and I want the support of my colleagues" or "I have won my case at the Labour Court but — which is inevitable in a case involving an anti-union employer — the employer will not implement the recommendation of the Labour Court and I am now asking you, my colleagues, to support me in implementing the recommendation of the Labour Court". They would not want to know because the next person to raise his or her head would go the same way. This is most regrettable.
The Minister's second argument was that if there are no procedures, there is no problem, one can go ahead in any event. Once this legislation is enacted no employer will be so remiss as to have no procedures. They will have procedures and the person most likely to have the most tortuous and tedious procedures is the anti-union employer. He will have his lawyers and advisers draft procedures which are so tortuous and difficult as to make them long winded in terms of their use. Therefore the Minister's response simply does not stand up.
I am happy the Minister has taken the spirit of the arguments on board and brought forward amendments Nos. 5 and 6. There is no doubt that these amendments represent an improvement. Amendment No. 5 proposes the deletion of the words "agreed procedures" to be substituted by the words "provided for in a collective agreement". I can have no dispute with that. If there is a collective agreement, in other words, an agreement between the trade union and the employer, it is fair that he is required to go through the steps of that agreement. I have no quibble with that. Indeed, I welcome it and thank the Minister for bringing it forward.
The problem is that the Minister is drawing a distinction between the trade union organised employer who does his business as provided for in a collective agreement and the anti-union hostile employer who says "I am not amenable to the Labour Court or to doing business with trade unions." He will be able to abuse the legislation because of the inclusion of the earlier phrase which reads "there are procedures which are normally availed of in employment concerned".Under the Minister's construction that stands.
The section was amended on Committee Stage. My amendment is to the section as amended in Committee. I have eliminated that phrase. The section now reads "there are procedures availed of by custom or in practice in the employment concerned, or agreed procedures..." My amendment proposes the deletion of the words "agreed procedures" to be substituted by the words "provided for in a collective agreement".
The Minister is proposing in amendment No. 5 that we delete the words "agreed procedures"——
The words "normally availed of" were removed on Committee Stage.
They are to be replaced with the words "there are procedures availed of by custom or in practice in the employment concerned"——
That is correct.
That is equally offensive for this simple reason: the section now reads "there are procedures availed of by custom or in practice in the employment concerned.""Custom or in practice" has a certain meaning in industrial relations but the point that should be made is that in the non-union house "procedures availed of by custom or in practice" means unilateral procedures.
I do not want to take up the time of the House by going through all the examples I have given but let us take the 7-eleven example, which we dealt with at some length in the House. Because an employee badly needs employment he or she signs this long winded American style agreement which has always applied in the case of 7-eleven and a great many other employers have adopted this procedure since it was introduced, and under section 9 (2) as it now stands an employer will say that "these are the procedures availed of by custom or in practice in this employment" whereas "by custom or in practice" has an entirely different meaning to me as a trade union official. To a trade union official it means a collective understanding between an employer and a trade union that they do things in the way they have always been done, by custom or in practice.
I am saying there is a fault in the section in that it draws a distinction between the trade union organised employer, provided for in amendment No. 5, and the non-trade union organised employer who will be able to avail of the colloquial term contained in subsection (2) which has a different meaning in industrial relations between organised employments. There is an escape hatch for him and it is particularly unfortunate that it is the bad, hostile, anti-union employer who will be able to exploit it while the employer who acknowledges the existence of a trade union and makes an agreement will find it difficult to circumvent.
Since we are on Report Stage and we are discussing amendments Nos. 4 and 5 together I put on record my appreciation of the fact that the Minister has moved in respect of amendment No. 5. I share the concern expressed by Deputy Rabbitte. In the interests of orderly advancement in this House I will await what the Minister has to say.
The Minister would be well advised to take on board the points made by Deputy Rabbitte because they carry much weight. Rather than delay the House I urge the Minister to consider accepting the amendment in the name of Deputy Rabbitte rather than his own amendment.
I should like to say we have accepted the amendment put forward by Deputy Quinn. I think that gets over the second part of the collective agreement. I take the point made by Deputy Rabbitte that custom and practice is a very important part of unwritten agreements in this country. Perhaps I have still not provided for the fly-by-nights.To satisfy Deputy Rabbitte because of the support he has got from Deputies Mitchell and Quinn, I suggest that if I put in the word "agreed" before the word "procedures" that would cover the point.
I accept that.
I suggest that line 32 would read: "there are agreed procedures...".Section 9 (2) would then read:
Where in relation to the employment or non-employment or the terms or conditions of or affecting the employment of one individual worker, there are agreed procedures availed of by custom or in practice in the employment concerned, or provided for in a collective agreement, for the resolution of individual grievances, including dismissals, sections 10, 11 and 12 shall apply only where those procedures have been resorted to and exhausted.
I think in the circumstances that is the best the Minister can do and I thank him for it.
This is not the way to do business. Again, I am motivated by the concern expressed by the House that everything be done in accordance with the requirements. The best we can do now is to take it that we have a new amendment No. 5a as read out by the Minister, and as agreed by the House, and that that new amendment is agreed to.
Amendment by leave, withdrawn.
Amendment No. 5 not moved.
I move amendment No. 5a to alter subsection (2) to read as follows:
Where in relation to the employment or non-employment or the terms or conditions of or affecting the employment of one individual worker, there are agreed procedures availed of by custom or in practice in the employment concerned, or provided for in a collective agreement, for the resolution of individual grievances, including dismissals, sections 10, 11 and 12 shall apply only where those procedures have been resorted to and exhausted.
It displays the kind of possibility that industrial relations always requires.
The order can change very much overnight as the Deputy is aware. We cherish all our amendments equally.
My aim is to keep the courts out of this.
Amendment agreed to.
We move on to amendment No. 6 in the names of An tAire, Deputies Quinn, O'Sullivan and Rabbitte. Amendment No. 7 is an alternative. It is proposed that we take amendments Nos. 6 and 7 together. Is that agreed? Agreed.
Why is amendment No. 7 not first as my list of amendments were submitted first.
The Chair would not be familiar with the order of receipt.
I move amendment No. 6:
In page 7, line 41, after "Tribunal", to insert "but shall not include an appeal to a court".
I am accepting Deputy Mitchell's amendment as much as I am accepting amendment No. 6. The parliamentary draftsman made the point that an example is the case of appeals to the Circuit Court on decisions of the Employment Appeals Tribunal. While I feel that such a reference is not strictly necessary, as procedures could specify what is or what is not covered, I have no objection to the amendment. As it is clear that what is involved is an appeal to the civil court rather than the Labour Court, it is not necessary to use the words "of law" after the word "court". The substance of the amendments put forward by Deputies is accepted.
Deputy Mitchell is happy that the legislation is being improved by his amendment, too.
Amendment agreed to.
Amendment No. 7 not moved.
I move amendment No. 8:
In page 8, line 8, after "business" to insert "or, at the commencement of the dispute, had normally worked or had normally carried on business."
This is an amendment which seeks to clarify and help to make more explicit the provisions of the Bill.
I have obtained legal advice to the effect that it is not necessary to refer specifically to the past tense. It is a matter of looking at a particular situation objectively and asking whether it is reasonable to regard a particular location as a place of business of the employer involved in the dispute. I would not be in favour of an amendment along the lines proposed as it would convey the impression that it was quite legitimate — and this is the real danger — to picket a location where an employer carried on bussiness at any time in the past. The employer could have left the place ten years ago but because he had been there it could be picketed. In any event I consider that the wording as it stands is adequate and the amendment is not necessary.
The Minister's comment does not bear analysis. I will read my amendment. It proposes:
In page 8, line 8, after "business" to insert "or, at the commencement of the dispute, had normally worked or had normally carried on business."
This is to cover the point where an employer purported to have sacked employees and that dismissal was central to the dispute. An employer could claim that the employee no longer worked for him and, therefore, may not be covered by the terms of the Bill as currently drafted or we could have a situation where the business has been taken over by a new employer. That takeover could have the effect of subverting the rights of the workers.
I assume the Deputy is not pressing the amendment?
Amendment, by leave, withdrawn.
We now come to amendment No. 9 in the name of Deputy Rabbitte. It is suggested that amendment No. 10 is related, amendment No. 11 is an alternative to No. 10, amendment No. 13 is consequential on amendment No. 10. It is proposed, therefore, with the agreement of the House to take amendments Nos. 9, 10, 11 and 13 together for discussion. Is that agreed? Agreed.
I move amendment No. 9:
In page 8, lines 15 and 16, to delete "it is reasonable for those who are so attending to believe" and substitute "those so attending believe".
There is only one net point I wish to make about amendment No. 9, that is, that the test now for secondary picketing becomes an objective one of "reasonable" belief rather than the subjective one of "honest" belief. In as much as it does that it places a heavier onus on the trade union and its members because there will be many very difficult situations where workers know instinctively that they are placing a picket on the secondary employer because there is a connection and because he is damaging, undermining or frustrating their strike. To be able to show in court that they had a reasonable belief as compared to being able to go into court and swear that: "I honestly believed that this was the case" makes it more difficult. God knows, section 11 already makes it quite difficult and onerous from the point of view of trade unionists.
From the point of view of workers, after the discussion on industrial action, this is another major contentious area of this Bill. There is a difference a Leas-Cheann Comhairle, as you have pointed out, between amendments Nos. 10 and 11. In amendment No. 11, although I acknowledge that the Minister by moving the word "calculated" has gone some way towards meeting the arguments I have advanced on a number of previous occasions and to which my colleagues in the Labour and Fine Gael parties have equally taken exception, I accept that is an improvement but, unfortunately, the Minister has allowed the phrase "directly assisting" the secondary employer to stand. If the Minister's amendment is accepted the onus requires them to be able to show that the secondary employer has directly assisted their employer who is party to the trade dispute for the purpose of frustrating the strike or other industrial action. That requirement of being able to prove that he has directly assisted is extremely onerous and will shift the balance of power again in favour of the employer. I submit that my phrasing which reads: "has directly or indirectly assisted their employer who is party to the trade dispute with the effect of frustrating the strike or other industrial action" is a better formulation. In very many circumstances it will be very difficult for the trade union concerned to be able to prove that the placing of this picket on the secondary employer was because they had this reasonable belief that that secondary employer was "directly assisting" their own employer. That will be extremely difficult — as I explained at some length on Committee Stage if not impossible, in the case of a great many of the contractors and subcontractors who are out there. In the circumstances that I have adduced on many occasions certainly they will be able to show that of course they are damaging or undermining the strike; they may even be taking the jobs of the people who are on strike but they are not directly assisting the first employer, the first employer will have lost the contract. All they are doing is availing of the marketplace in order to get a contract for themselves. Unfortunately, at a time when sub-contract and contract labour is a proliferating feature of the make-up of the workforce this will discriminate directly against contract workers who henceforth effectively will be unable to prosecute a trade dispute for employment because, in placing the picket against the secondary employer, they will be unable to show — as the Minister's amendment requires — they were directly assisting their employer. He is directly in competition with their employer, not assisting him; he is in direct competition in a free market economy. Far from directly assisting him he is endeavouring, not so much to do him damage, as just win the contract from him. Unfortunately, a whole segment, perhaps 100,000 workers, will be adversely affected as a result of this. That is very regrettable.
The Minister acknowledged the substance of some of these arguments, but for whatever reason, has not enshrined it in his amendment. I am less concerned about my change in wording from the other amendment in the sense that mine is constructed to have the effect of frustrating the strike rather than the Minister's formulation which says "for the purpose of frustrating the strike". Again it renders it that much more difficult for workers and trade unions because they have to show there was a purpose whereas, under my amendment, all that has to be shown is that there was the effect; in other words, that if the objective effect was that the dispute was damaged then the case applies. Under the Minister's formulation, one has to prove that they did it for the purpose of undermining the strike. There is a distinction to be drawn there, an important one, but not nearly as important as the earlier requirement to impose on trade unions the requirement to prove that the secondary employer was directly assisting their employer.
Take the example of the grocery and retail trade. Suppose there was a dispute at Dunnes Stores in Henry Street and there is a Dunnes Stores around the corner in which there is not — there are a great many other Dunnes Stores in the city — can the workers in dispute at Henry Street place a picket on one particular other Dunnes Store or any other Dunnes Store? In my view, under this formulation, they cannot. I say that because, although that particular second Dunnes Store, or any other chain or multiple that would be taking up the slack, thereby damaging the dispute and in that way meeting the first criterion of this section — that they are undermining or frustrating the strike — one could not prove, in those circumstances that they were doing anything other than availing of the fact that they now have a whole new segment of customers who have simply changed their business from that particular store to one around the corner. In effect this means the workers could be picketing until the cows come home. The needs of the customers are being met in the adjacent store of the same multiple but one cannot transfer the picket to it because of the formulation of this section.
The Minister has shown himself to be flexible in the course of this debate on aspects of the Bill that are held very dear vis-á-vis industrial action. The Minister well knows from his meetings with Congress that this is a major area of concern. I accept that the removal of the word “calculated” renders it that bit more acceptable but, unfortunately, fundamental objections remain for two reasons.
I am sorry to interrupt the Deputy; I know what he is saying is important. On the other hand, it is essential that I call on the Minister of State at the Department of the Taoiseach to move a motion before 1.30 p.m. May I ask Deputy Rabbitte, therefore, to give way until that has been attended to.