I move: "That the Bill be now read a Second Time."
On behalf of the Labour Party I am proud to introduce the Trade Union Recognition Bill, 1998, and commend it to Dáil Éireann. Following lengthy consultations with both sides of industry, the Labour Party believes that the growing problem of denial of the basic civil right to trade union representation by employers can only be resolved by legislation to strengthen the long standing industrial relations procedures.
The current serious trade union recognition dispute at Ryanair highlights the urgency for enhancing the powers of the Labour Court as this Bill proposes to do. While Ryanair has made a significant contribution to the growth of air transport in Ireland especially over the past five years, the success of the company is largely due to a very dedicated and hard working staff and to the policies of deregulation of the industry implemented by the State.
The outrageous bullying by Ryanair management of young, poorly paid baggage handlers who wish to be represented by SIPTU is deplorable and should cease immediately. The arrogant and insulting refusal of Ryanair management to attend a Labour Court hearing is equally reprehensible and must be addressed by this House.
It is notable that commentators from across the political spectrum have condemned Ryanair's appalling attitude to the democratic wishes of its staff and to the experienced industrial relations machinery of the State. The Taoiseach, Deputy Ahern, has rightly castigated the old fashioned "tooth and claw capitalism" as personified by Michael O'Leary and Ryanair management. However, if the Taoiseach wishes to be taken seriously with regard to his comments on the behaviour of Ryanair management, he should accept this Labour Party Bill and allow it to proceed to Committee Stage. I challenge him to do this.
Although innovative in some respects, Ryanair management is a Victorian dinosaur in terms of industrial relations. For the Labour Party and the labour movement the crass antics of Ryanair management stir unhappy memories of the birth of our great tradition. Our founders, James Connolly and Jim Larkin — my predecessor in Dublin North East — battled similar capitalists to Mr. Ryan and Mr. O'Leary in 1912 and 1913. Almost a century later we will not countenance the destruction of our movement's hard won civil and industrial democratic rights.
The Ryanair dispute is the latest in a series of trade union recognition disputes which have increasingly alarmed workers and their union representatives over the past decade. Between 1985 and 1996, for example, an average of 11 cases annually concerning trade union recognition were referred to the Labour Court. Since 1985, at least 14 trade unions have been involved in trade union recognition disputes including SIPTU, ATGWU, MSF, MANDATE, IDATU and AEEU. Many of these disputes have arisen in the small indigenous private sector with pay and conditions below industry norms.
Some multinational companies with similar pay and conditions have also been affected. Apart from Ryanair the number of high profile trade union recognition cases include companies such as Pat the Baker, Elan Corporation and Nolan Transport which is involved in legal action currently before the Supreme Court. Many of these disputes were referred to the Labour Court under section 20 of the Industrial Relations Act, 1969. More recently a number of such cases are being heard under section 26 of the Industrial Relations Act, 1990. Many leading trade unionists believe that the 1990 Act worsened several of the industrial rights of workers and the status of trade unions and should be amended by the Oireachtas.
Article 40.6.1º of the 1937 Constitution guarantees "the right of the citizen to form associations and unions". Many people regard this statement of a fundamental human right to clearly imply the right to be professionally represented by a trade union. As one trade unionist said recently, the right to belong to a football or golf club surely means that the member might take part in football or golf. However, the courts have interpreted article 40.6.1º as not granting a corresponding right to citizens to have their right to be professionally represented accepted by employers.
In Dublin Colleges ASA v. City of Dublin VEC in 1981, for example, the High Court held there was no corresponding obligation on an employer to recognise a staff association for the purpose of negotiating pay and conditions of employment. This decision mirrored an earlier judgment in Abbott & Whelan v. ITGWU and Southern Health Board and others in 1980 when Judge McWilliam held that “there is no duty placed on an employer to negotiate with any particular citizen or body of citizens”.
Of course the courts and the Industrial Relations Act, 1990, recognise trade union recognition disputes as bona fide trade disputes for the purpose of allowing industrial action. The Trade Union Recognition Bill, 1998, will strengthen the authority of the Labour Court by giving it the power to make a legally binding Employment Regulation Order in union recognition disputes. The adoption of this approach and the use of existing well tried industrial relations procedures avoids the constitutional barriers which have been erected by the courts on the issues of trade union freedom and freedom of association.
There is a long tradition of voluntarism in Irish industrial relations and a reluctance to resort to legislative sanctions. The nation has been well served over the past half century by institutions such as the Labour Court, the Labour Relations Commission and the Employer Labour Conference. Indeed, the vast majority of Labour Court recommendations are accepted by employers and trade unions.
The extension of social partnership from 1987 has underpinned the incredible economic prosperity Ireland has enjoyed in this decade. However, from the PESP to Partnership 2000, deep anxiety has grown among trade unions at the failure of employers to grant recognition and the growing threat which this poses to the continuance of social partnership and economic success.
Paragraph 9.8 of Partnership 2000 states:
Partnership is an active relationship based on recognition of a common interest to secure the competitiveness, viability and prosperity of the enterprise. It involves a continuing commitment by employees to improvements in equality and efficiency; and the acceptance by employers of employees as stakeholders with rights and interests to be considered in the context of major decisions affecting their employment.
The same paragraph established a high level group composed of the Departments of the Taoiseach, Finance and Enterprise, Trade and Employment, ICTU, IBEC and the IDA to resolve the problem of non-recognition of trade unions by employers and the growing threat this posed to partnership and industrial peace. The report of the high level group, issued before Christmas, proposed a code of practice which did not endorse the ICTU request for an enhancement of the Labour Court by giving it the power to issue a binding recommendation on pay and conditions in recognition disputes. This Bill attempts to remedy that failure.
The Labour Party is determined to insist on a fair approach to the fruits of our economic prosperity. A key part of the Labour Party's fairness agenda is the resolution of trade union recognition disputes in a balanced way, taking into account the rights of workers and employers and utilising the well tried existing industrial relations process. In drafting this legislation I have consulted with leading trade unionists, employer representatives and the IDA. In particular I am grateful to the President of SIPTU, Mr. Jimmy Somers, for his encouragement and lengthy advice. I also received valuable assistance from Mr. Brendan Hayes of SIPTU and Mr. Richard Humphries, the Labour Party's legal adviser.
The Trade Union Recognition Bill also draws heavily on the Irish Congress of Trade Unions submission to the high level group established under Partnership 2000. That submission, entitled "Trade Union Recognition — The Right to Bargain", proposed to resolve the serious problems presented by employers who refused to allow professional representation to their staff by setting out a framework agreed between congress and employer organisations which used existing experienced industrial relations procedures. The framework culminated in an Employment Regulation Order on pay and conditions. However, I have not followed the system of incremental levels of recognition proposed in the Irish Congress of Trade Unions submission.
Similarly in the Bill, on behalf of the Labour Party, I have focused in a pragmatic way on procedures and outcomes rather than on the formal status of recognition. I fully agree with the conclusions of a paper on trade union recognition in Ireland by Jack McGinley, which indicates that there are three remedies open to the Government with regard to trade union recognition without immediately going the constitutional amendment route, a route we may have to pursue at some stage. Two of these concern a European directive — we are aware of the recent comments of Commissioner Pádraig Flynn on this matter — or a statutory code of practice from the Labour Relations Commission. The third, an extension of the powers of the Labour Court, is the objective of this Bill.
The explanatory memorandum makes it clear that the Trade Union Recognition Bill does not interfere with the legitimate rights of either side of industry but establishes a framework within which those rights can be harmonised where a dispute arises. The question of trade union recognition is defined as "one of balance between the rights of both sides of the industrial relations equation". Where a recognition dispute arises, either party to the dispute may refer it to the Labour Relations Commission in accordance with section 1 of the Bill. If the LRC cannot resolve the dispute, either party may then refer the matter to the Labour Court under section 2.
Under section 3, the Labour Court is empowered to investigate the dispute, which may be done in private unless one of the parties requests the court to do otherwise and the court so decides. The Labour Court will be allowed to order the taking of a ballot of the employees in the employment or any category thereof by section 4 of the Bill. The court can decide on all aspects of the ballot, including a request to the LRC for assistance with the ballot, the category of persons entitled to vote, the manner of voting and the ballot information and facilities to be provided to employees by the union and employer.
Under section 5, the Labour Court is empowered to summon witnesses and examine them on oath and require the production of any documents. Witnesses will be entitled to the same immunities and privileges as if they appeared before the High Court and will be guilty of an offence if they fail to discharge their duties as witnesses to the dispute at the Labour Court.
At the conclusion of the investigation, the Labour Court will issue a recommendation on the matter — section 6 — and will invite the parties to the dispute to consider the recommendation and report back within a specified period. The court will not recommend that a trade union should be recognised for the purposes of this Act "unless it is satisfied that the trade union is representative of employees in the employment or a substantial category thereof". Under section 6 the Labour Court will not recommend in favour of trade union recognition if another union already "stands recognised by the employer for the purposes of this Act" for the employment or category thereof concerned in the dispute.
Under section 7 — the scope of the recommendation — the Labour Court may recommend the employer to recognise a particular trade union specified in the order or any other course of action or redress the court thinks appropriate. The recommendations of the Labour Court will be in writing and will be published — sections 8 and 9.
Section 10 is a key element of the Bill. If, after the expiry of a period specified in the recommendation, the Labour Court is satisfied that the recommendation has not been complied with and is unlikely to resolve the trade union recognition dispute, the court may make an employment regulation order under section 43 of the 1946 Act in respect of the employer and the trade union specified notwithstanding that the order is not made on the proposal of a joint labour committee. Joint labour committees, which were set up under the 1946 Act, were the inspiration for this idea in the submission by the Irish Congress of Trade Unions.
The employment regulation order may determine pay and conditions and provide for consultation with the trade union in relation to its members in respect of any matter on which the employer is statutorily obliged to consult the employees and in relation to disciplinary proceedings affecting a member of the trade union — sections 11 and 12. When a trade union is recognised under this Act section 12 also requires the employer to "negotiate in good faith with the trade union in respect of pay and conditions" of its members. This provision applies only if the employer decides to recognise the trade union. If he refuses recognition, section 10 applies.
Given that the employer who refuses to engage with a trade union, which can show that it represents a substantial number of employees either across the whole workforce or in a particular grade or category, faces the option of having the Labour Court determine in a legally binding manner critical employment issues such as pay and conditions, the Bill can be seen as giving the employer a powerful incentive to bargain. It is hoped that in many employments where there are fair pay and conditions this would not need to come into existence because the demand for a trade union would not arise.
Section 13 deals with the important matter of whether a trade union is representative of the employees in a recognition dispute. The union will be held to be representative of the employees by the Labour Court "if it represents a substantial number of the employees concerned" and "whether or not it represents all or a majority." That applies to a category of employment as well as the employment itself. As the explanatory memorandum outlines, this provision accords with the decision in "Federation of Irish Rail and Road Workers-v-Great Southern Railways (1942) where it was held that a trade union which represented about one-third of employees was sufficiently representative for the purposes of a statutory provision.
The Bill provides that the dismissal of an employee for reasons related to the seeking of trade union recognition shall be an unfair dismissal under the Unfair Dismissals, Act, 1977 — section 14.
Section 18 provides for summary proceedings for an offence under this Act to be instituted by the Minister for Enterprise, Trade and Employment. An offence committed by a body corporate and which is proved to have had the consent or connivance of or be attributable to the neglect on the part of a director, manager, secretary or similar officer of the body corporate shall be guilty of an offence.
Ultimately, the legal sanctions applying to an employment regulation order of the Labour Court will apply to an employer who refuses to bargain in good faith under this Act. If the employer continues to refuse to comply with an employment regulation order of the Labour Court in a trade union recognition dispute, he will leave himself open to the usual forms of legal redress for employers under the Industrial Relations Act, 1946. These include continuous fines and civil actions by employees for back pay and unlimited damages and, in addition, the employer is open to injunctions until the dispute is resolved.
Section 19 gives the Minister power to make regulations for the purpose of giving effect to the Act. Section 20, the penultimate section, defines "trade union" as including an excepted body within the meaning of section 6 of the Trade Union Act, 1941. That is an important section. This follows the precedent set by my colleague, the former Minister for Labour Affairs, Ms Eithne Fitzgerald in the Organisation of Working Time Act, 1997. The former Minister thus permitted staff associations and works councils to collectively bargain on working time issues. Of course, such non-trade union bodies obviously need to demonstrate their independence from an employer if they are to be accepted as bone fide employee representatives. The inclusion of non-union employee representative bodies within the scope of the Trade Union Recognition Bill, 1998, therefore, gives it a much wider remit than trade unions alone.
The Labour Party is putting in place here a mechanism whereby any employee can achieve fairness as regards their pay and conditions even if their employer refuses to deal with a trade union. This provision will also prove very helpful to employees in non-union, multinational companies, which have employee representative bodies under a human resource management structure.
Having outlined the Bill before us, I would like to deal with some of the potential objections to its enactment into law. It may be said that this Bill will be a potential deterrence to US multinationals locating and operating in Ireland. We have already heard the Taoiseach sing that mantra and we will possibly hear the Minister, Deputy Kitt, sing it tonight. The Bill poses no threat whatsoever to the human resource policies of multinationals. First, there is no suggestion in the Bill that unions will be imposed on employees who do not wish to be represented by a union. Past experience in the court ensures employers are protected in that regard.
The procedures outlined in the Bill become triggered only when a "substantial number" of employees in an employment or a category of employment voluntarily join or are involved. Second, the Labour Court will make a legally binding award only if it finds that pay and conditions are out of line with industry norms. Most multinationals contend they have pay and benefit packages above such norms, making union membership irrelevant. If that is true, they should have no cause for concern. On the other hand, if it is not true, the employees of such companies should have a fair rate of pay and decent conditions.
On the broader issue of attracting US and other multinationals to Ireland, it is generally agreed that factors other than union membership have played a far greater role. These include our outstanding and increasingly technological education system. The recent ESRI report drew attention to the fact that the education system, with the outstanding teachers and parents' court, is one of the best and most technological systems in the world. I commend the Government on the initiative it took in that regard. Other factors include our social partnership in the economy and political stability, our entry within a few short months into the Euro zone and, perhaps most of all, the fact that we speak the leading international language of technology and business as a native language.
It has been noticeable that in multinational areas where disputes have arisen about trade union membership, some of the companies that wished to be non-trade union companies here had a trade union tradition abroad. In regard to the current Ryanair dispute, the airline on which Ryanair is modelled, with a low cost culture, is South Western Airlines, one of the most successful companies on the New York stock exchange. Even though it was the model for the success of Ryanair, South Western Airlines is a highly unionised company.
We reject the suggestion that the Bill is an abandonment of the voluntarist approach to industrial relations. Recent years have seen increasing legislation of the employment relationship, with more and more aspects of the employment contract being decided by law.
In the early 1970s there was only a handful of employment law covering holidays, redundancies and employment conditions, such as the Conditions of Employment Act, 1936. In addition to equality legislation, we now have laws on unfair dismissals, collective redundancies, transfer of undertakings, European works councils, working time and part-time workers. If the Minister of State, Deputy Kitt, had agreed with me some months ago we would also have been delighted to put the Shop Workers' Bill on the Statute Book.
There is also impending legislation on parental leave, while Brussels is examining the questions of national level works councils and contract employment. Recent speeches by the Commissioner for Social Affairs, Pádraig Flynn, have brought these issues to our attention. The "voluntary" in our former volunterist system of industrial relations has become extremely circumscribed, perhaps because of the impact of the modern economy and the traditions of European industrial relations into which we have been integrating over the past 25 years.
In essence, the Trade Union Recognition Bill, 1998 does not oblige an employer to recognise and/or deal with a trade union for all purposes. It does, however, put a procedure in place whereby the Labour Court can examine an employer's pay and conditions, including health and safety provisions, in relation to particular groups of employees and issue a legally binding decision on pay and conditions. Health and safety provisions are a central feature of the Ryanair baggage handlers' dispute.
If the employer refuses to co-operate with the court or accept a trade union recommendation, the court will proceed on the evidence before it from the union. In such circumstances, it is in the employer's interest to co-operate with the court.
The procedure outlined in this Bill is not dissimilar to the procedures already followed in equal pay claims. If such a claim cannot be resolved with an employer, it is subsequently referred to an equality officer who investigates it and then issues a legally binding decision. Either party is free to appeal a decision to the Labour Court and ultimately to the courts. With the imminent passage of the revised Employment Equality Bill, 1997, these redress procedures will be extended to allow claims to be made on all of the discrimination grounds of age, race and so on.
Claims under the Employment Equality Bill can be presented by individuals or groups and, as the operation of the existing equality legislation shows, some claimants will be represented by trade unions and some by solicitors or barristers. The employer does not have to deal with unions or solicitors at all. He or she makes his or her case to the equality officer and must show that pay and conditions are not discriminatory.
Fears may be expressed that to allow the Labour Court to decide on the pay and conditions of one group of employees could upset an organisation's complete pay structures. However, exactly the same arguments can be advanced against existing and impending equality legislation, especially since the European Court has opened the door to claims of indirect discrimination. The recent £100,000 award to four employees of the Irish Aviation Authority and the current discussions about the incremental and promotional rights of job sharers are cases in point. The awards certainly upset existing pay and relativity structures but only because those structures were illegal in the first place. While a Labour Court decision under the Trade Union Recognition Bill would not declare an organisation's pay and conditions to be illegal, it would amount to saying they were unfair and should be changed. That would often be the reason many workers would demand the right to join a trade union in the first instance.
The fundamental case for this Bill is the absolute necessity of fairness for citizens in all walks of life. That is the essential ideology of the Labour Party and the entire labour movement. SIPTU has rightly advanced the argument during the Ryanair dispute that, as in other walks of life, employees are entitled to professional representation in negotiations over pay and conditions. Mr. Paul O'Sullivan, a SIPTU official, noted that when Mr. Michael O'Leary received his first £14 million bounty from the share flotation of Ryanair, later to become £17 million, he would have received professional advice in his dealings with the owners of the airline. It would seem that he should at least afford the same basic privilege to the lowest paid of his workers who now seek trade union recognition and professional representation.
The list of employment legislation to which I have referred gives added weight to this argument. No ordinary employee can be expected to be familiar with the intricacies of this legislation. How can employees be expected to make effective representations, on their own behalf, in negotiations with experienced professional personnel or human resource managers without experienced professional trade union negotiators to guide them?
Even in EU countries, such as the Netherlands, where trade union membership stands at approximately 30 per cent of the total workforce, the argument in favour of professional trade union representation is accepted by most employers. In the literature which I consulted during the preparation of this Bill, I noted that employers in countries such as the Netherlands often prefer to deal with professional trade union representatives rather than people on the shop floor as trade unions have a great deal of experience in negotiation.
At recent meetings on the Ryanair dispute, several Fianna Fáil Deputies with trade union experience — that exotic breed — indicated their support for trade union recognition. One Deputy, who hails from my own constituency, spoke of fighting for this principle "till the blood ran down his face". I am not calling on this Deputy to take such drastic measures yet but l believe he and his colleagues must walk through the lobby in support of this Bill or else be seen as hypocrites. The Taoiseach and his brother, Deputy Brady and others would, in the past, have adopted the same attitude as the Fianna Fáil Deputy to whom I referred. Will they now fundamentally betray their own people's basic civil right and vote against their own history? I hope they will not and I hope the Taoiseach will accept this Bill and put in on the Statute Book.
I call on the Taoiseach himself to lead these Deputies and allow them to retain some honour and credibility by accepting this Bill. The Labour Party believes the Bill, as it stands, is an important contribution to Irish industrial relations but we would be willing to accept reasonable amendments on Committee Stage which would preserve the central thrust of the Bill, namely, to resolve the problems of non-recognition of workers' chosen representatives in their trade unions by strengthening our existing experience and institutions, particularly the Labour Court.
This Bill is a modest proposal as we are not proposing generalised mandatory recognition. I make no apologies for bringing forward a modest proposal which is hopefully balanced to recognise the rights of both sides of industry. This Bill is not a blunt instrument of mandatory recognition but a carefully tailored exercise to establish a framework in which trade union recognition disputes can be resolved.
The Labour Party insists that it is the job of the Dáil to put in place laws which ensure that citizens are treated fairly. It cannot be denied by most fair observers that, in the Ryanair dispute and other disputes over trade union recognition, very low paid workers and workers who experience difficult work conditions have been treated very unfairly and have been denied the fundamental constitutional right to be represented by a professional trade union.
Until recently, the pay and conditions of the great majority of workers were organised by collective negotiations. With a significant growth in the number of employers who do not want to deal with unions, a clear responsibility lies with legislators to ensure that citizens are dealt with in a fair manner in the workplace. This is what the Trade Union Recognition Bill, 1998, is designed to do and I commend it to the House.
I wish to share my time with Deputy Upton.
