I move: "That the Bill be now read a Second Time."
This Bill provides for a new dispute settling power to be given to the Labour Court to enable it to investigate a dispute and issue findings which ultimately can be enforced through the Circuit Court. This new dispute settling power will apply in cases where collective bargaining arrangements are not in place and the parties are not engaged in talks.
During the discussions on Partnership 2000, both the Irish Congress of Trade Unions and the Irish Business and Employers Confederation, IBEC, in the context of modernising our industrial relations procedures and institutions, agreed to devise a mechanism for resolving such disputes. A high level group was established to consider detailed proposals from congress on the recognition of unions and the right to bargain.
The group consisted of representatives from IBEC, ICTU, the Departments of Finance and Enterprise, Trade and Employment, IDA Ireland and Enterprise Ireland, and was chaired by an official from the Department of the Taoiseach. It issued a set of proposals in December 1997 which were not accepted by the trade unions generally. The Ryanair dispute highlighted the importance of developing solutions for similar disputes in the future. In December 1998, following publication of the report of inquiry into the dispute at Dublin Airport and the Supreme Court judgment in the Nolan Transport case, I reconvened the group and asked it to further consider the matter.
The group came up with an agreed set of proposals later that year. In summary, it reaffirmed that where negotiating arrangements are in place, the most effective means of resolving differences that arise between employers and employees is voluntary collective bargaining. The report went on to address the problems that arise in disputes where negotiating arrangements are not in place and recommended two distinct procedures to be put in place. The first of these is a voluntary one and is set out in the code of practice on voluntary dispute resolution which was prepared by the Labour Relations Commission and published by the Tánaiste in May this year. The objective of this code is to provide a recognised framework for the processing of disputes in situations where negotiating arrangements are not in place and where collective bargaining fails to take place. It prescribes that management and unions should fully co-operate in seeking to resolve issues in dispute effectively and expeditiously by means of the following steps.
In the first instance, the matters should be referred to the Labour Relations Commission, which will appoint an officer from its advisory service to assess the issues in dispute. The LRC officer will work with the parties in an attempt to help them resolve the issues in dispute. In the event that the issues in dispute are not capable of early resolution by the LRC intervention, an agreed cooling-off period will be put in place. During the cooling-off period, the LRC's advisory service will continue to work with the parties in an attempt to resolve the outstanding issues. The commission may engage expert assistance, including the involvement of ICTU and IBEC, should that prove helpful to the resolution of any differences. If after the cooling-off period all issues have been resolved, the LRC will disengage. Before disengaging, the commission may make proposals to the parties on procedures for the peaceful resolution of any further grievances or disputes. Finally, in the event of issues remaining unresolved after the cooling-off period, the LRC shall make a written report to the Labour Court on the matter. The court shall consider the position of the employer and the union and issue recommendations on outstanding matters.
This voluntary procedure was the preferred approach of the group. It is only in the case of parties not participating in this voluntary approach that a legislated fall-back procedure would come into play. It can be seen from its report that the group envisaged it would operate only in exceptional circumstances.
The Bill will give effect to that special fall-back procedure. It provides for a unilateral referral by an authorised trade union or excepted body to the Labour Court in situations where the following circumstances pertain: it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures normally used by the parties concerned have failed to resolve the dispute; the employer has failed to observe a provision of the code of practice on voluntary dispute resolution mentioned earlier or has failed to observe such a provision in good faith; neither the trade union nor the employees, as the case may be, have acted in a manner which, in the opinion of the court, has frustrated the employer in observing a provision of the code of practice; and, neither the trade union nor the employees have had recourse to industrial action after the dispute was referred to the commission in accordance with the provisions of the code of practice.
The essential point is that, in order to trigger the special fall-back procedure provided for in this legislation, an employer must have failed to avail of, or failed to follow in good faith, the voluntary procedures as set out in the code of practice. If the employer has behaved in that fashion, a trade union can activate referral to the Labour Court under this new fall-back procedure, a procedure which can culminate in an outcome that is legally enforceable through the Circuit Court.
This Bill sets out the various steps in this fall-back procedure. The court is empowered to investigate the issues in dispute and issue a recommendation in the normal way. If matters remain unresolved, the court may, at the request of either party, review all relevant matters and issue a determination. Ultimately, if matters remain unresolved, the court will issue a binding determination. Where an employer fails to comply with this latter determination, an enforcement order can be sought in the Circuit Court.
I will now outline the various provisions of the Bill in general detail. Section 1 is a standard interpretation section which provides for the definition of certain terms that are mentioned later in the Bill.
Section 2 covers the investigation of disputes by the Labour Court. In subsection (1) it specifies the circumstances under which the court will investigate a dispute. Subsection (2) requires the court to take account of any existing practices in place in the employment concerned for setting terms and conditions of employment and to have regard to the entirety of labour relations practices in the employment concerned.
Section 3 gives power to the court to hold a preliminary hearing to satisfy itself that the requirements of section 2 have been met. Section 4 extends the powers to summon and examine witnesses and require the production of documents to any investigation carried out under the Bill, which are granted to the court under section 21 of the Industrial Relations Act, 1946.
Section 5 empowers the court to issue a recommendation on terms and conditions of employment and on dispute resolution and disciplinary procedures. Consistent with the overall approach to this legislation, it will not be open to the court to include arrangements for collective bargaining in its recommendation.
The Labour Court recommendation issued under section 5 is not legally binding. However, if the recommendation does not result in the dispute being resolved, the court, under the power given to it in section 6, may, at the request of a trade union or excepted body, review all relevant matters and issue a binding determination.
Section 7 requires determinations issued by the court to be in writing, to be served on both parties and to include a statement setting out the reasons for its determination. Section 8 outlines the effect of industrial action. It requires the Labour Court, following a request from an employer or a trade union, to cease its involvement and withdraw any recommendation it has issued, if industrial action has taken place between the time the matter was referred to the Labour Relations Commission and the issue of a determination under section 6.
Section 9 enables the court to review and vacate, affirm or vary a determination where requested by either party, but not earlier than 12 months after the court made it. Section 10 enables a trade union to apply to the Circuit Court for an enforcement order where the binding Labour Court determination under section 6 has not been implemented.
Section 11 allows for an appeal to the High Court on a point of law only. Section 12 is a routine provision enabling the making of regulations. Section 13 outlines the short and collective titles for the Bill and prescribes that the Bill shall come into operation on such day as the Minister may appoint by order.
In summary, this legislation provides a mechanism for processing claims on behalf of employees where an employer has refused to follow the voluntary procedure as outlined in the code of practice on voluntary dispute resolution. This new dispute settling power for the court reflects the consensus in the high level group. It will enable a trade union to progress pay or other conditions on behalf of its members in these cases which meet the criteria set out in section 2.
Most trade union recognition disputes have their origins in concerns about pay and other conditions. This Bill will greatly improve the prospects of resolving these type of disputes. At present, trade unions can refer claims to the Labour Court under section 20(1) of the Industrial Relations Act, 1969. However the court's recommendation is binding only on the trade union and not on the employer. The legislation which I am moving today will ensure finality by providing for the enforcement of Labour Court findings in the Circuit Court, if necessary. In other words, it will ensure there are no blank walls, that there will be a process which aggrieved workers and unions can use to resolve their differences.
Deputies will recall that the Labour Party introduced the Trade Union Recognition Bill in the Dáil in February 1998. At that time, the high level group had been given the task by the previous Government of considering ICTU proposals on the matter in the context of chapter 9 of Partnership 2000. While the Private Members' Bill was a valuable contribution to the debate – which I have always acknowledged – I indicated at the time that my approach was to seek a consensus between IBEC and ICTU before agreeing to legislation.
I am very pleased that we now have agreed proposals for dealing with this sensitive issue. The formula devised by the high level group represents a balanced response. Both unions and employers have opted for this approach, which reflects their preferred option of continuing our voluntarist tradition.
The justification for such procedures as I have outlined in both the code of practice and the Bill was, as I said in the Seanad, put succinctly by Mr. Justice O'Flaherty in his judgment in the Supreme Court in the Nolan Transport case when he said:
The State, representing the rest of us ordinary citizens and taxpayers, has a very keen interest in seeing to the harmonisation of industrial relations. We all stand to lose too much where there is strife and conflict. We should now have advanced sufficiently in our respect for democracy and the rule of law and all its refinements to work out a better way. At this stage of our development this country should be an example to other countries on how to avoid industrial conflict, and when conflict does arise on how to resolve it speedily. That is good for everyone; it will lead to more employment and increased trade.
He went on to state that "employers have an obligation to accord trade unions a measure of respect: representing as they do the rights of the workers."
The procedures we are now putting in place – the voluntary mechanism in the code of practice and the special fall-back procedure in this Bill – offer a method of dealing with the right to bargain in situations where collective bargaining arrangements are not in place and the parties have not engaged in talks.
It is instructive to see the measures proposed in the Bill in the context of our overall approach to industrial relations procedures. The fundamental approach of successive Governments to industrial relations has been one of voluntarism, and this approach has served us well over the years. Traditionally, our laws do not try to impose a solution on parties to an industrial dispute, but rather are designed to help and support the parties in their efforts to resolve their differences. The State has confined its role to underpinning voluntarism through the provision of third party machinery and a floor of statutory rights. I have put this case on many occasions over the past three years, as Minister of State with responsibility for labour affairs, at European Union level, where we try to share best practice.
I am proud that we have an unique position in European terms in regard to social partnership. Such a system enhances the general industrial relations debate at EU level.
The State provides a number of dispute resolution services to assist workers and employers in resolving their differences. The Labour Relations Commission chairs more than 2,000 meetings per year and four fifths of these cases are settled at conciliation. Issues not resolved by the Labour Relations Commission are normally referred for investigation to the Labour Court. Despite the fact that the majority of recommendations issued by the court are non-binding, there is an acceptance rate of more than 80% by parties to disputes. Those involved at Labour Relations Commission level and Labour Court level deserve great credit. We hear only about these organisations in times of conflict. It is important to note that in the majority of cases disputes are resolved. Their work is crucial to the economy and I take this opportunity to acknowledge it.
A consensus exists among employers, trade unions and Government that voluntary collective bargaining should be the primary means of regulating industrial relations. Such collective agreements cover all issues arising in the employment relationship and – consistent with the notion of voluntarism – are not legally binding. They have a moral force only but, in practice, are all the more successful because of their voluntary nature. I might add, parenthetically, that the five national agreements since 1987 have promoted growth, competitiveness and social inclusion which surpassed even our wildest dreams. At the core of this collective bargaining has been the willingness on all sides, employers, workers, Government and others to take into account and appreciate the views and aspirations of others, thus facilitating a consensus approach to macro-economic issues based on partnership and mutual gains principles.
All sections of society have benefited from the increased competitiveness of our economy. This consensus approach has involved a continuing commitment by employees to improvements in quality and efficiency and an acceptance by employers of employees as stakeholders with rights and interests to be considered in the context of decisions affecting the enterprise in which they work. The strains that are currently in evidence have much to do with managing our economic growth and our growing expectations. We cannot and must not fritter away the gains we have made by taking our eye off the ball of competitiveness and fairness. To do so would be short-sighted and no way to build a solid platform for further economic prosperity.
Legislation can play an important role in underpinning the voluntarist approach to industrial relations. This Bill, which has the support of both sides in the employment relationship, will have a significant impact on reducing conflict between employers and workers in situations where collective bargaining is absent.
The Bill passed all stages in the Upper House following a lively and constructive debate. I agreed to reflect on some issues raised and I will come back to these on Committee Stage. I look forward to hearing what Members have to say. Obviously I am open to considering some amendments.
I commend the Bill to the House.