Industrial Relations (Amendment) Bill, 2000 [ Seanad ] : Report Stage (Resumed).

Debate resumed on amendment No. 1:

In page 3, lines 5 to 7, to delete all words from and including "MAKE" in line 5 down to and including "EMPLOYERS" in line 7 and substitute "REQUIRE EMPLOYERS TO RECOGNISE AND NEGOTIATE WITH TRADE UNIONS AND EXCEPTED BODIES".

–(Deputy Higgins,Dublin West).

Mr. Higgins

(Dublin West): The process of getting this Bill through the Oireachtas is almost as leadránach as it will be for workers to bring employers, against whom they have a serious grievance, to heel under the provisions being put forward by the Minister of State in this legislation.

The import of my amendments are that employers would be required to recognise and negotiate with trade unions and excepted bodies. This was the original intention of legislation such as this Bill. However, unfortunately this objective has been overthrown by the Minister of State and the Government and we have a watered-down mish-mash. Amendments tabled by Opposition Members will expose just how inadequate this Bill will be for workers seeking redress against employers who will prove difficult or recalcitrant – a breed which is alive and well.

The Minister of State's argument against my amendments and the idea that employers should be compelled to recognise and negotiate with trade unions, is based on a judgment given in the High Court in 1979 or 1980 in what is known as the Abbott and Whelan case. This judgment is frequently used to argue that making it compulsory for employers to recognise trade unions would be unconstitutional.

It is a pity the Minister of State did not use the opportunity provided by the introduction of this legislation to test this issue again and, if there was a permanent block, to consider a constitutional amendment. However, having examined the case a little, I am surprised that so much reliance is placed on this judgment.

To the best of my knowledge this was an unreported judgment and so, unless the Minister of State can tell me otherwise, all we have is a decision. I have not seen the reasoning behind the judgment. The Minister of State has relied on the decision in this case which is based on Article 40.6 of the Constitution. Having examined this Article the decision seems extraordinary. Article 40.6 guarantees liberty for the exercise of certain rights by citizens, subject to public order and morality.

Article 40.6(i) guarantees, "The right of the citizens to express freely their convictions and opinions". Article 40.6(ii) guarantees, "The right of the citizens to assemble peaceably and without arms", and Article 40.6(iii) guarantees, "The right of the citizens to form associations and unions". How this Article can be turned into a right of recalcitrant employers not to recognise trade unions should be tested again in the courts. The Minister of State could have done so by introducing a full-blooded trade union recognition Bill which, if necessary, could have been referred to the Supreme Court for an opinion before being signed into law. Unfortunately the Government did not take this course because the Government is clearly not committed to compelling employers to deal with workers in a reasonable manner without workers having to drag employers round the houses, as is provided for in this legislation.

I hope the Minister of State has reconsidered my amendment. If accepted, the amendment would result in a real trade union recognition Bill which would compel employers to recognise and negotiate with unions once members of a company's work force notified their employer that such unions existed. This would resolve the problem of recalcitrant employers being difficult with regard to the membership of trade unions, avoiding their responsibilities and, in general, trying to deny workers rights which had to be hard fought for over 200 years, if we are to go back to the origins of the first associations which led to the trade union movement.

The history of trade unionism in this country is such that at least one pivotal moment in Irish history, namely, the 1913 lock-out, emanates from the refusal of employers to recognise and negotiate with trade unions. It is unfortunate the Government did not recognise this fact and legislate to guarantee this right for which traditionally people have struggled and which is seen as very important by generations of workers. Some of the greatest leaders of the working class movement such as James Connolly, Jim Larkin, and nameless men and women who lived before, during and after their time have struggled for this right.

Mr. Rabbitte

I am on record as saying that precious legislative time ought not be taken up by this Bill, as I cannot find any merit or purpose in it. The Bill was born out of the Ryanair dispute and the understandable wish to avoid the chaos which occurred in that instance. However, the end product does not advance the cause and it would be better if this Bill was not enacted.

However, it is clear the Minister of State intends to see this Bill enacted. The Bill started life under the guise of a Labour Party Private Members' Bill known as the Trade Union Recognition Bill but has become the Industrial Relations (Amendment) Bill.

Deputy Higgins's amendment seeks to concentrate on the long title of the Bill. However, the substantial point is that the reason the title of the Bill has changed is that the purpose of the Bill has changed. The Bill is no longer about trade union recognition. There is no right of representation for trade unions or excepted bodies under the Bill. If there is no right of representation, there is no right of recognition and, therefore, it is not a recognition Bill. Our Bill provided a formula where if a trade union was representative of a substantial proportion of the workers, it would have to be recognised. However, there is now no requirement or compulsion to recognise the trade union, but a tortuous and long-winded procedure where the State may intervene in certain circumstances and fix the pay and conditions of the workers represented by the trade union. I am not sure that is a good principle. As I said on Committee Stage, it is capable of being misrepresented.

Competitor bodies to the Industrial Development Authority may seek to make mischief with the Bill. Although in this jurisdiction trade union recognition is not required, there will be circumstances where the State may intervene and fix the wages and conditions of the workers. It is an extraordinary compromise. As the Government heads towards an imminent general election when valuable legislation going through the House will fall, it would have been better if this Bill had been rostered in a fashion that ensured it fell and would not be resurrected in the future. However, the Minister of State appears intent on pressing ahead.

In the Official Report of the Committee Stage debate, the Minister of State, Deputy Kitt, said:

"I am prepared to make changes to the legislation on foot of some of the amendments tabled and suggestions made."

However, I do not recall him accepting too many amendments and I presume that means he will accept a number of amendments today. I welcome that move in anticipation. I can see the Minister of State in the corner, saying that the Government legislated for the recognition of trade unions and that it is the workers' friend. He and the Taoiseach see themselves in that role, but that is not what the Bill is about and it is important that point is put on the record at the outset of the debate.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt)

I did not say the Bill was earth shattering or radical. However, Deputy Rabbitte and Deputy Higgins are aware of the background to it and they will recall the Ryanair dispute. The Bill will deal with that and similar situations. In the context of the Government being the workers' friend, we are trying to put forward a pro-worker position. As Deputy Rabbitte is aware, the Bill will deal with cases similar to the Ryanair dispute where an employer will not engage with the Labour Court. Under section 4, an employer can be summoned to the Labour Court.

If Deputy Rabbitte belittles the Bill, he is belittling the social partnership process because, as he is aware, the legislation stems from the social partners. I acknowledge it is difficult for the Opposition to hit the Government when a social partnership system is in place. The Deputy served in a Government that supported that process although his partners in that Administration, the Fine Gael Party, did not always do so. However, it supports it now and I acknowledge that fact. Nevertheless, it is not fair to rubbish the Bill because it is an important development and it stems from the social partnership system. I asked the social partners to consider this matter and to come back to me. The Bill is the result and there is no need to give it much more time, although that is a matter for the Deputy who, on the one hand, described the Bill as worthless but, on the other, said it would be a disincentive to investment.

The amendments are opposed. There was a reference to the Abbott and Whelan case, but a range of case law throws doubt on the constitutionality of the amendments. Aside from the legal argument, the amendments conflict with the approach agreed by the social partners. This point should be noted. The approach involves two strands. The first is the code of practice on voluntary dispute resolution under which the parties can engage in resolving claims. This code involves referral to the advisory service of the Labour Relations Commission. Failing agreement, the parties can refer the issues in dispute to the Labour Court for a non-binding recommendation, which is the final step in the voluntary process.

Second, the Bill deals with a situation where an employer has failed to observe a provision of the code of practice or has failed to observe it in good faith in accordance with section 2(1)(b). Under the Bill, claims can be processed to finality despite the fact that the employer has not engaged in collective bargaining. It is significant that finality is attached to the Bill. The legislation reflects a consensus view of the social partners on how to deal with difficult disputes in a structured manner. It is incumbent on me to legislate in this area to try to avoid the damaging disputes that arose in the past, including the Ryanair dispute to which I referred and the Nolan Transport and Pat the Baker cases. They are examples of what the Bill seeks to address.

The legislation offers a framework to resolve such disputes peacefully. The approach of successive Governments has been to underpin the voluntarist approach and to allow the social partners to reach as much agreement as possible in direct discussions. As the Minister of State with responsibility for labour affairs, I have continued this approach. In the aftermath of the Ryanair dispute, I requested ICTU and IBEC to redouble their efforts to reach consensus on disputes where collective bargaining was absent. It is a tribute to them both that they succeeded in agreeing the approach outlined in the code of practice on voluntary dispute resolution and the Bill. In keeping with the policy of underpinning the voluntarist approach followed by successive Governments, I am not disposed to deviating from the consensus agreed by ICTU and IBEC. This may appear repetitive, but that is the reality of the position. The Bill allows a trade union to process to finality a grievance or claim on behalf of employees. This is the agreed approach of the social partners and I am not disposed to varying it.

Mr. Higgins

(Dublin West): There is a total contradiction in the Minister of State's statement. He mentioned the voluntarist approach, but the Bill purports to deal with employers who do not voluntarily come to the negotiating table. What does the voluntarist approach have to do with such people? The Minister of State relies on the so-called social partnership process, but the Bill is supposed to deal with employers who do not consider themselves part of any such process. To invoke that mantra is to ignore the reality of what the Bill is supposed to address, namely employers who do not engage and who are not prepared to sit down and talk to their employees. The Minister referred to the issue of seeing a dispute through to finality.

Mr. T. Kitt

To the Circuit Court.

Mr. Higgins

(Dublin West): Yes. As I said previously, some hapless trade union official could find himself or herself up to two and a half years after the dispute began, chasing paper around the Circuit Court, High Court or other courts. By then, the issue will have long passed and workers may have been victimised out of the work force. This happened in the case of Ryanair where if workers could not be got rid of one way, they were got rid of another way. Unfortunately, by that time, employers could have shut up shop in the event of a recession and be long gone, perhaps even out of the country. A company and its work force could be long gone before a case reached finality in the courts. That is the reason these amendments should be accepted by the Minister of State.

Amendment put and declared lost.

Mr. Higgins

(Dublin West): I move amendment No. 2:

In page 3, between lines 28 and 29, to insert the following:

"2.–(1) An employer shall recognise and negotiate with a trade union or excepted body where such trade union or excepted body notifies the employer in writing that it represents a part or all of the workforce who are its members.

(2) An employer who fails to comply with this section shall be guilty of an offence and shall be subject to a fine not exceeding £30,000.".

Amendment put.

Tá

Bell, Michael.Broughan, Thomas P.Gilmore, Éamon.Gormley, John.Gregory, Tony.Healy, Seamus.Higgins, Joe.Higgins, Michael.Howlin, Brendan.McDowell, Derek.McManus, Liz.

Moynihan-Cronin, Breeda.O'Shea, Brian.O'Sullivan, Jan.Penrose, William.Quinn, Ruairí.Rabbitte, Pat.Ryan, Seán.Sargent, Trevor.Stagg, Emmet.Upton, Mary.Wall, Jack.

Níl

Ahern, Michael.Ahern, Noel.Andrews, David.Ardagh, Seán.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.

Coughlan, Mary.Cullen, Martin.Daly, Brendan.Dempsey, Noel.Dennehy, John.Doherty, Seán.Ellis, John.Fahey, Frank.Fleming, Seán.Flood, Chris.Foley, Denis.Fox, Mildred.Hanafin, Mary. Haughey, Seán.

Níl–continued

Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael P.Kitt, Tom.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McGennis, Marian.McGuinness, John J.Martin, Micheál.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.

Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Ned.O'Kennedy, Michael.Power, Seán.Reynolds, Albert.Roche, Dick.Smith, Brendan.Smith, Michael.Treacy, Noel.Wade, Eddie.Wallace, Dan.Wallace, Mary.Walsh, Joe.Wright, G. V.

Tellers: Tá, Deputies Higgins(Dublin West) and Stagg; Níl, Deputies S. Brennan and Power.

Amendment declared lost.

Mr. Rabbitte

I move amendment No. 3:

In page 4. to delete lines 14 to 18.

The amendment seeks to delete section 2(1)(d). This is the key section of the Bill where the court may intervene. If a trade union requests the court to intervene in a conflict where the issue is trade union recognition, the court, notwithstanding anything in the Industrial Relations Acts, 1946 to 1990, may agree to examine the dispute.

However, the court cannot do so unless the terms set out in section 2(1)(a), (b) and (c) are met. These are rigorous demands on workers. The first condition is that the court must be satisfied it is not the practice of the employer to engage in negotiations with his or her workers. I do not know how the court satisfies itself about that, but I presume the employer concerned would have some type of track record for failing to engage in collective bargaining with his or her workers. The second condition is that the court must be satisfied the employer has failed to observe a provision of the code of practice on voluntary dispute resolution. That is a rigorous test. The third condition is that the trade union or the employees must not have acted in a manner which, in the opinion of the court, frustrated the employer in observing the provisions of such a code. The interesting aspect to that is that the court not only must be happy the trade union did not frustrate the employer but also that the employees did not do so. That is very rigorous, but we are prepared to live with it.

However, the addition of section 2(1)(d) is a belt and braces job. The requirement in this paragraph is that the court must be satisfied the trade union, excepted body or the employees did not have recourse to industrial action after the dispute in question was referred to the commission in accordance with the provisions of such code of practice. That is a belt and braces situation. The three previous conditions are very rigorous and demanding. Notwithstanding that, for the court to intervene under this legislation, it must be satisfied not only that the trade union did not have recourse to industrial action, something I can understand, but also that the employees, even in the heat of battle and despite the dynamic of industrial relations, did not engage in anything that could be termed as industrial action, even for a brief period such as a day, a half day or an hour. If the court is not satisfied, it cannot intervene.

We lose sight in discussing the Bill of the fact that we are dealing with recalcitrant employers. We are not dealing with normal industrial relations where normal employers deal with normal unions. By definition we are dealing with the employer who does not recognise collective bargaining or a trade union. That is the prerequisite. In such circumstances to impose an obligation on the court to be satisfied that there is no recourse to industrial action is too rigorous.

Despite what I have said about the Bill, I accept that the Minister of State has a different view to me and is entitled to that. I take that in good faith. However, if I accept the Minister of State's conviction at face value, even from his point of view, this measure I have discussed is unwise. As sure as we debate this on Report Stage, the day will come when, because of some precipitous action in an environment of conflict, workers will down tools for an hour or whatever with the result that section 2 may not be invoked and the dispute may not be referred to the court. We will regret that.

Any set of circumstances could be involved. A shop steward could be dismissed, for example, or disciplinary action may be taken against workers. Workers could react in the heat of the moment to such a situation, even after the matter has been referred to the Labour Relations Commission. All one need do is cast one's mind back to Ryanair. Is anyone seriously telling me that, without mentioning the name of any individual in Ryanair, that company was not capable of taking action which would provoke workers to down tools or whatever, even after the matter was referred to the Labour Relations Commission?

We are tying our hands on this. The provision is unwise and is a belt and braces provision. Even at this late stage the Minister of State should leave paragraphs (a), (b) and (c) which, combined, are very demanding and onerous, and excise paragraph (d). I could understand if that paragraph had stated that the obligation was on the trade union not to have had official recourse to industrial action after referral of its grievance to the Labour Relations Commission. If the employees, separately from their trade union and notwithstanding what advice they may get from it, decide they have had enough, are unwilling to take any more from their employer and engage on certain action, the court may not hear their case. That defeats the essence and thrust of the Bill. I appeal to the Minister of State to take that on board at this late stage.

Mr. Higgins

(Dublin West): I support what Deputy Rabbitte said and add to it by saying that this provision can paralyse the legislation. Now that the Minister of State, with the support of Fianna Fáil, the Progressive Democrats and Fine Gael, has rendered impossible a proper trade union recognition Bill, we must examine more minutely the workings of this legislation and the machinery it provides. Deputy Rabbitte correctly outlined a number of possibilities for industrial action. With workers facing a period of up to 18 months before what the Minister calls “finality” of their grievance might be arrived at, there is an invitation to an employer to take provocative action. What is a group of workers to do if, for example, an employer dismisses them? Are they to wait 18 months or two years before the matter is resolved while, meanwhile they have no jobs and their mortgages will not be frozen in the same manner as the industrial relations process. This clause is completely pro-employer and will render the legislation meaningless, especially when workers face provocative situations with employers taking high handed actions, either deliberately to provoke or because it is their normal practice.

The Minister of State must answer these points. What does he say to workers who make their grievances known but who find this followed by dismissals, for example? The Minister of State says that if these workers go on strike they will lose their right to have recourse to the legislation. The situation is even worse than that. The employer can set up a situation where the court would be forbidden from intervening under the legislation. In a situation where a trade union, the excepted body or the employees have not had recourse to industrial action, the employer could set up a few stool pigeons to take industrial action. The employer could then argue that because employees have had recourse to industrial action the process cannot go any further. It is in the hands of an employer to throw a spanner in the works of this machinery even before it is put into use.

Perhaps this is one of the amendments the Minister of State intends to accept but did not tell us so in advance. I hope that is the case.

Mr. Bell

In adding my voice to that of my colleague I speak from personal experience. My first job at national level in the trade union movement was as national organiser. My job was to organise workers into a trade union. I know how long that can take, standing outside factory gates, distributing leaflets, persuading workers to attend meetings and trying to organise them. Often an organiser can persuade some workers but not others, and such a situation might continue for months or even years.

If this section was allowed to remain in the Bill it would create a number of problems. It would make a bad situation even worse because workers would come to the conclusion that the only action open to them was unofficial action. The Bill deals, not with employees who do not wish to join a trade union but with employers who do not wish their employees to join one, even though we are told they have a constitutional right to join a trade union. If this legislation was applied it would have the opposite effect to that intended. Any employer worth his salt could sabotage the operation of this section. Instead of strengthening the Bill, this section would weaken it substantially. Deputy Rabbitte has reminded us how Ryanair used every possible tactic to resist unionisation of their employees. This section gives freedom to an employer of that type to disrupt and frustrate any attempt at organisation by employees. I hope the Minister will accept the advice of Deputy Rabbitte and accept the amendment.

Mr. Flanagan

In spite of what Deputy Higgins might say about my party I am inclined to the view that there is a point to much of what he has said. I ask the Minister of State to address the Deputy's concerns. If the Minister of State is not prepared to do so in a satisfactory manner he must accept that he is introducing a problem rather than assisting in the resolution of one. The maintenance of industrial peace should be to the fore of any industrial relations legislation and this Bill is no exception to that.

I foresee a difficulty if the process was deliberately frustrated by an employer who wished to circumvent the legislation and ensure that workers would not have recourse to the legislation as intended. A number of important questions have been asked but the Minister of State did not address them during the debate on Committee Stage. This is the last opportunity the House will have to allay the fears expressed by the previous speakers. There is an onus on the Minister of State to allay doubts and deal with the problems outlined by Deputies. Otherwise this section could be a recipe for frustration not intended by the Minister of State.

Mr. T. Kitt

I thank the Deputies for their contributions. There are concerns about this section and I will try to address them.

I am opposed to the amendment but I will clarify my opposition and deal with the issues. The concerns expressed by Deputies are genuine but they are dealt with in another section. The effect of section 2(1) (d) is to set, as a precondition to an investigation by the Labour Court the requirement that there be no recourse to industrial action. The ban on industrial action is a cornerstone of the legislation and in deciding on the package of measures contained in the code of practice on voluntary dispute resolution and the provision of this legislation, the high level group agreed that the maintenance of industrial peace was essential during the process. That was its position. Where parties have embarked on a procedure to resolve a dispute it would be standard practice for both sides to refrain from any form of coercion in advance of the procedure being completed. The compromise reached between the ICTU and IBEC places obligations both on workers and employers. It is essential that during the entire process the employer follows the procedure in good faith and the employees refrain from industrial action.

Having said all that, I recognise the point the Deputies have made. On Committee Stage I obviously listened carefully to what Deputy Rabbitte and others said. Following their representations, I accepted an amendment to section 8 which involved a modification whereby a total ban on industrial action was changed to discretion being given to the court to decide if some industrial action could be excused, and the court would continue the process. If workers take industrial action, they put themselves outside the process. The reward, if I can put it that way, for staying within the process is a binding decision on their grievance about which the employer has no discretion. I have given the court discretion as to whether to proceed with an investigation where industrial action is taken during the statutory process.

Section 8, as it now stands, following amendment on Committee Stage, gives the court discretion to proceed with an investigation where it has been satisfied by a trade union or accepted body that it would be reasonable to do so having regard to all the circumstances of the dispute. This deals with the concerns expressed by Deputies Bell, Flanagan, Joe Higgins and Rabbitte in that the Labour Court can now exercise its judgment. Also, if it envisages a situation with regard to an employer who might, as Deputy Flanagan said, inspire or cause industrial action in a given situation, all these circumstances can be taken into account. In other words, each case can be looked at by the Labour Court within its own context.

My officials have discussed the legislation with the Labour Court's representatives who have agreed with what is included in the Bill. We have made an amendment to section 8 with which we will deal shortly. I totally accept the points the Deputies have made. In reply to Deputy Bell, let me clarify that industrial action, official or unofficial, would collapse the process unless the Labour Court excused the action under section 8.

To recap, a trade union can take the traditional route of industrial action, as before, but if a trade union seeks the benefit of this process – that is, a binding outcome to their claim – it must maintain industrial peace during the whole process. This is an essential and fair balance. This is clever legislation in many ways, but it is, clearly, a result of compromise between employers and employee representatives. I have acknowledged this time and again. I am suggesting that, to the best of my ability, I have accommodated the Deputies' genuine concerns, although not in this section, but in section 8. I am opposing the amendment.

Mr. Rabbitte

I have some difficulty with that. The Minister of State is referring to the existing section 8(2) about which I am not entirely clear, although, as the Minister of State said, we will have the opportunity to discuss it. I would have thought that if the kind of catch-all discretion the Minister of State is suggesting was being provided for the court, the section would state: "Notwithstanding anything in section 2, the court shall have the discretion, etc." It is not clear, however, from section 8(2) that the court will have that discretion in all circumstances. It seems that no matter what the court says, unless it is expressly provided for in section 8(2), the provisions of section 2(1)(a), (b), (c) and (d) will still have to be met. If the provisions of paragraphs (a), (b), (c) and (d) will have to be met, I am not clear how the court will have discretion unless it is expressly provided for.

Deputy Bell made the point that it would be desirable for the court to have discretion. We can be so preoccupied with arranging nice, neat legislation that in the quiet of the Chamber may make a great deal of sense. All one has to do is look outside the House today, however, to discover that industrial relations conflicts do not necessarily happen in this kind of environment with everybody reflecting rationally on what is happening.

It would be wrong to place an imposition on the court that it could not intervene in anything that might be termed industrial action. I remember that, in 1990, we argued long and hard about the definition of "industrial action". The definition is very wide nowadays and anything that may be termed as industrial action would prevent the court from intervening. The court is not free to intervene unless the provisions of section 2(1)(a), (b), (c) and (d) are met. Section 2(1) states

Notwithstanding anything contained in the Industrial Relations Acts, 1946 to 1990, at the request of a trade union or excepted body, the Court may investigate a trade dispute where the Court is satisfied that . . . (a), (b), (c) and (d).

I am not entirely with the Minister of State when he says that when we come to section 8(2) it will meet our fears. Is section 8(2) meant to be a catch-all that states:

"If the court itself, having heard the parties or having examined the issue, decides that, notwithstanding all of these sections, it seems to us that it is in the public interest that we should proceed to investigation, it shall so proceed"?

That seems to be what the Minister of State wants and it is, certainly, what I want, but the court may not do so under the preconditions laid down. Otherwise, one would need a catch-all section stating:

"Notwithstanding anything in section 2, the court may at its discretion, etc.", or whatever the appropriate wording may be.

That would be very wise.

In dealing with civil law, we frequently give the court discretion to make certain judgment calls. That is normal practice, but what we have in this case is the downside of legislation by negotiation. It is so prescriptive that it is likely to be counterproductive.

On the basis of what the Minister of State has told us so far, I cannot see how the fears which prompted the amendment in my name and that of Deputy Joe Higgins can be met. The last thing we should be doing is prescribing that the court may not intervene in what is likely to be a situation of conflict where tempers may be warm and the environment is not like that which prevails in the Chamber. The last thing we should be doing is putting obstacles in the way of the court. The court ought to be free to say: "We are proceeding with this investigation. The fact that there was a stoppage between 8 o'clock and 9 o'clock this morning is neither here nor there". I do not want to start adducing examples in this debate, but one need go no further than Kingsbridge today to understand that actions are taken in the industrial relations environment that may not make much sense to the great majority of the public. That is the nature of the factures that take place in industrial relations. We should be encouraging the court to use it powers where reasonable, rather than putting impediments in its way.

Mr. Higgins

(Dublin West): This is most puzzling. I fear the Minister is trying to be so clever with this legislation that he has tied himself up in a legal knot because two different stages of the procedure are involved. Section 2(1) states, “Notwithstanding anything contained in the Industrial Relations Acts, 1946 to 1990, at the request of a trade union or excepted body, the Court may investigate a trade dispute where the Court is satisfied that–-. . . (d) the trade union or excepted body or employees . . . have not had recourse to industrial action . . . ”. Section 8, however, deals with the procedure where it is already in train. Section 8(1) states, “. . . the Court shall cease its investigation or review. . . ”. That presumes it has already begun its investigation or review but it may not do so in the first instance if industrial action has taken place under section 2(1)(d).

Section 8 does not correct or make provision for section 2(1)(d) and, therefore, there is a complete contradiction. The Minister of State's solution to the problems raised by myself and previous speakers is not a solution. He may point out when he replies that somewhere during the logical progression, something else has intervened between sections 2 and 8 to verify what he said. Section 8(1) states, “. . . the court shall cease its investigation or review under section 6 and withdraw any recommendation where, either at the request of the employer or on its own initiative, the Court has satisfied itself that industrial action in relation to the dispute that is the subject of an investigation has taken place”. The Minister of State is relying on section 8(2) to redeem the situation. It states, “If. . . the Court is satisfied by a trade union. . . that it is reasonable to proceed with its investigation or review under section 6 it shall so proceed”.

Section 8(2) will never be invoked if the court is prevented under section 2(1)(d) from accepting the case in the first place or at least proceeding with it. This is not a solution to the problem. The simplest solution would be to delete section 2(1)(d).

Mr. T. Kitt

My advice is that the work we have done on section 8 provides flexibility to the Labour Court to address the scenarios outlined by the Deputies. The text of section 8(2), which will be addressed later, is adequate to enable the court to exercise its discretion on the question of whether the industrial action taken should collapse the process. I have endeavoured to address the concerns instanced by various Deputies. I am in the business of promoting industrial peace. Given the industrial action that has taken place in recent times, any of us who was not proactively promoting industrial peace in anything we did would not be doing his or her job properly.

The cornerstone of the legislation is industrial peace, no matter what formula is agreed. The high level group recommended this course of action. The Labour Court has examined the legislation and is satisfied it can work with it. We will address section 8(2) shortly. I am not in a position to make any amendments at this stage. I am satisfied there is a connection between sections 2 and 8(2) and that section 8(2) is strong enough to address the concerns raised by Deputies. I will not accept the amendment.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Mr. Rabbitte

I move amendment No. 4:

In page 4, line 21, after "concerned" to insert "including labour relations practices engaged in by the employer or an associated employer in another employment including an employment outside the State".

The amendment relates to section 2(2), which states, "In the course of an investigation under subsection (1) the Court shall have regard to the entirety of labour relations practices in the employment concerned”. I asked the Minister of State on Committee Stage what was the definition of “employment concerned”. It is defined nowhere in the legislation and he was unable to say what it means. Does it mean that the court, when examining these questions, at the preliminary hearing, is free to examine the practices generally among the company's workers wherever they are employed or does it mean that during an investigation the court is restricted to a particular location?

Presumably after all the conditions have been met section 2(2) is arrived at, which states, "In the course of an investigation under subsection (1) the Court shall have regard to the entirety of labour relations practices in the employment concerned”. I know this is not the stage for the Minister of State to give us tutorials on what a subsection means. I have glanced at the record of the Committee Stage debate and the Minister of State did not tell us the purpose of this section.

I would have thought the purpose of it is that if the court is confronted by an allegation by a trade union or excepted body relating to a recalcitrant employer who refuses to recognise trade unions, resists trade union recognition, will not acknowledge collective bargaining and will not submit to the voluntarist practices involved in industrial relations to which the Minster of State referred, the court is entitled to search and ascertain whether that is the reputation of the employer. Does the employer, for example, recognise any other category of worker who might have more muscle? Does he recognise the craft workers? Does he recognise the pilots? If so, why does he not recognise the baggage handlers and so on?

It is entirely reasonable to expect that the court would examine the totality of labour practices in the employment but why is employment defined in the mind of the Minister of State as meaning only employment at one location within this jurisdiction? On Committee Stage I instanced ALDI as a recent example. ALDI is trade union organised in Germany but is not in Dublin and the company resisted trade union recognition to the point of a dispute. What is the disbarment on the court examining the position in Germany and receiving information from whomsoever supplies it about practices in Germany? If a giant multiple is trade union organised in Germany, what is its supposed philosophical objection to being trade union organised in Ireland, another member state of the European Union?

The Minister of State says – I cannot follow this – that he could not possibly accept an amendment that would create an artificial link between Irish labour relations practices and those in other jurisdictions. Why not? What would be wrong with such a link? What would it do? Are we fearful that it would do some violence to our labour relations machinery? All the court wants to know is whether an employer is entitled to resist trade union recognition or what do we learn from an examination of practices followed by the employer, whether in Galway, Germany or Dublin.

I do not accept the Minister of State's reasons for rejecting the amendments we have tabled so far. I draw his attention to his own statement on Committee Stage when he stated: "I am prepared to make changes to the legislation on foot of some of the amendments tabled". I am aware that that is part of his conciliatory armoury, but when will he accept some of the amendments? Will he keep us here all night? At the speed we are going we will have to reconvene on another day unless he comes on board soon.

The amendment is sensible and would add clarity to the Bill. The Minister of State has not defined in the Bill the term "employment concerned". What will happen if ALDI opens another store in Drogheda? Is the Minister of State saying that it would be okay to look at the store in Drogheda because they would be both in the Irish jurisdiction, but if it opens a store in Newry, we could not, possibly, look at it because it would create an artificial link with industrial relations practices in another jurisdiction? That seems to be fantastic. What if it were to close the store in Drogheda because the pound was more favourable in Newry? We could not look at it in Newry, but we could look at it in Dundalk. I cannot see any sense in that. There is no sense in the Minister of State's reply in terms of Committee Stage when we tried to tease it out.

The Minister of State is advised by one of the great internationalists who did his time on behalf of the State in the European Union and knows all about the links with Germany and so on. I am puzzled that he would receive advice that the amendment would create an artificial link. I would have thought that his advice would be that it would facilitate convergence among the EU member states—

Mr. Flanagan

A real link.

Mr. Rabbitte

—a meaningful link and so on. I hope we have said enough to persuade him that the amendment is only for the purpose of clarity and that the court ought to be given the opportunity to examine a company's practices wherever it wants to do so, not just in Ireland.

Mr. Higgins

(Dublin West): I support the amendment in the name of Deputy Rabbitte which is eminently reasonable. It would be to the advantage of employees if it were included in the legislation which is being brought forward because of the pressure exerted by groups of employees placed in a very disadvantageous posi tion by virtue of the high-handed methods of certain employers. The initial intention of the Bill has been transmogrified virtually beyond recognition, but we try to salvage the best deal possible within what the Government is offering for those workers who will rely on the legislation at some critical time for them in the future.

My reading of the amendment is that it would insist that the higher standards that apply in any employment or associated employment of the employer, the subject of the complaint, be emulated and insisted upon for the employees making the complaint that would trigger the mechanisms of the legislation. Other countries have a longer track record of labour legislation. In some cases, as a result either of legislation or the strength of the trade union movement at particular locations, workers in western Europe may have secured from the employer or the associates of the Irish employer standards that have not been implemented here. Why not require that those higher standards be examined with a view to deciding what is right for Irish workers?

Some of the great organisers of the trade union and labour movement of the past, the pioneers, often made the point that workers had no country. In this case, it is totally artificial, especially in the era of globalisation which is being driven by multinationals or other powerful companies. It is particularly the case that if higher standards are obtaining in associated employers or the same employer outside the borders of the State, they should be able to be examined with a view to securing a fair deal for the workers in question who have triggered this industrial relations machinery.

Mr. Flanagan

I seek clarification from the Minister of State on this point because the court must have regard to the entirety of the situation, but what is that entirety? Is it the entire spectrum of associated employment in a particular concern or a specific concern throughout other jurisdictions? Deputy Rabbitte pointed to the practical example of a concern which may have a plant in Dublin, the subject matter of a dispute, an associated concern in Drogheda and a further associated concern across the Border. Let us take it a stage further. If the concern in Dublin was the only concern within the jurisdiction, with other associated concerns in France and Germany, presumably the court would have to have regard to the position in Germany in France. If that is the case, what is the play about the artificial link the Minister of State is talking about? Where does he stand as far as this link is concerned?

I have no difficulty with the amendment. At least if the amendment is accepted we will be in a position to determine the exact situation, because it appears to advocate a number of clearly defined parameters. Whereas, as it stands, the subsection gives rise to an element of doubt and uncertainty and is obviously confusing. Let us clarify the position, in so far as is possible.

Mr. T. Kitt

I will attempt to clarify matters. The phrase "shall have regard to the entirety of labour relations" is broad and, moreover, it is mandatory in nature. It is designed to enable the court to adopt the widest possible attitude in considering a dispute. It should be borne in mind that it could be to the advantage or disadvantage of either party to look at labour relations practices outside the State. I remind Deputies that employees in a similar company in another country might not have access to a trade union. Nothing in the phrase restricts the court from hearing evidence from either party as to what goes on elsewhere in the company or employment. That obviously includes companies in other jurisdictions. The concerns of Deputies are met by the current legislation.

To the extent that Labour Court recommendations or determinations will not deal with arrangements for collective bargaining, I do not feel I should add the dimension proposed by Deputy Rabbitte in a legal text which mandates the Labour Court regarding what it shall or shall not consider. The balance of advantage in our voluntary system lies with less rather than more legal prescription, thus affording the Labour Court wide discretion in considering the submissions of both parties. I remind Deputies, before they press the amendment, that there is a possibility they could be proposing an amendment to the legislation which might militate against workers. In my opinion, we should leave it to the Labour Court to consider situations not just in Ireland but also in other jurisdictions. That is the meaning of the legislation.

Mr. Flanagan

Why does it not say that?

Mr. T. Kitt

It does say that. The legislation does not preclude the Labour Court from considering other situations outside this jurisdiction.

Mr. Rabbitte

The first point is that, as Deputy Flanagan stated, it does not say that. I still do not know why that is the case. The only terms defined in the Bill are "commission", "court", "accepted body" and "Minister". There is no definition of the employment concerned.

My second point is that, as the Minister of State indicated, it could work to the advantage or disadvantage of workers. However, what weight of disadvantage would result from being free to look at the practice elsewhere in Europe? If the company is organised elsewhere in Europe, that is an advantage from the point of view of the workers. If it is not organised elsewhere in Europe, this probably does no more than demonstrate that the employer also has an anti-union ethos in the relevant jurisdiction. I do not see how that is a disadvantage to workers.

Let us consider the position of the union of which Deputy Bell and I are members. I offer a hypothetical situation where that union, SIPTU, might organise a cement plant in the Leas-Cheann Comhairle's constituency and it might organise a similar plant immediately across the Border. Let us suppose that the plant south of the Border resists trade union organisation of the kind as envisaged in the Bill.

Mr. Bell

That has happened.

Mr. Rabbitte

Yes. It makes no sense that the union that represents workers a few hundred metres across the Border ought not be free to examine the practices there as well. The Minister of State knows that what he and I say in this debate will be of little enough interest if this legislation is ever contested. If a buccaneering Michael O'Leary of the concrete industry decides to go to court, what the Minister of State, Deputy Kitt, said on the day the Bill was passing through the House will be of little enough interest to the judge. He or she will make their mind up on the basis of what is contained in the section. Under the section, the "employment" appears to mean the cement plant south of the Border and does not refer also to the plant north of the Border. In the interests of clarity, we should deal with that matter. I do not see how it will diminish the Bill in any fashion.

Mr. T. Kitt

May I respond?

An Leas-Cheann Comhairle

Let us hear first from Deputy Joe Higgins. The Minister of State will be able to make a two minute reply.

Mr. Higgins

(Dublin West): The Minister of State must clarify the issue. To take up the point made by Deputy Rabbitte, in my opinion the judge will pay no attention whatsoever to what was said in the Dáil and will base his or her judgment on what is contained in the Act. That is why the amendment is so important. The Minister of State said that the Labour Court shall not be precluded from looking at practices in other employments and in other countries, but that is different from requiring it to look. He also warned that it could be to the disadvantage of workers. I do not see that as a danger because when the court is looking at other employments – even those outside the State – it will, presumably, choose best, not worst, practice. If the court is required to examine practices in other employments, in associated employments and in those in other jurisdictions, it would be with the view to transposing best practices and requiring employers to emulate them.

Mr. T. Kitt

On this occasion, the case made by my fellow parliamentarians outweighs the advice given by my officials. I will, therefore, accept the amendment.

Mr. Rabbitte

The Minister of State is definite Cabinet material.

Mr. T. Kitt

I would dearly love it if my acceptance of the amendment would allow us to proceed with the Bill with due haste.

Amendment agreed to.

Mr. Rabbitte

I move amendment No. 5:

In page 4, between lines 21 and 22, to insert the following:

"3.–The dismissal of an employee for availing of the provisions of section 2 or otherwise in connection with seeking or intending to seek redress under this Act shall be deemed to be an unfair dismissal for the purposes of section 6(2)(a) of the Unfair Dismissals Act, 1977.”.

This amendment is important because it purports to deal with the kind of situation to which we referred earlier where a trade union and its members scrupulously observe the requirements set out in section 2(1)(a), (b), (c) and (d) and, despite this, the employer dismisses the shop steward. As the section stands, the shop steward will stand dismissed for, in my view, up to two years. On Committee Stage we discussed how long the entire process would take from start to finish and I believe the Minister of State has acknowledged that 18 months is a reasonable estimate in this regard. If a trade union does everything required under the legislation and manages to keep the employees in line and those employees observe the spirit and letter of the legislation and cannot have recourse to industrial action and they are nonetheless dismissed in the circumstances I have described, that, as my amendment suggests, ought to be regarded as an unfair dismissal within the meaning of the Unfair Dismissals Act, 1977. Anything else is a travesty.

I believe the Minister of State wants to preserve industrial peace. If someone who obeys all the rules and observes the strait-jacket imposed here is dismissed, what is the point in reverting to this a year and a half later? The person has lost their job. It is irretrievable breakdown or whatever phrase we use in marital legislation. He or she will not get back into employment. It seems it should be by definition an unfair dismissal and that we should proceed under the Unfair Dismissals Act, separate from whatever comes out of the dispute. Both sides of this House know that, as regards both sides of the table of industrial relations, the chances of that person going back into employment – I have the stripes on my back to show such circumstances – are virtually nil. The Minister of State should go through the cases of the unfair dismissals tribunal and calculate how many were reinstated in their employment or re-engaged by their employer even in circumstances where they won their case. The predominant redress is compensation, not being reinstated in the job. I advocate that the Minister of State should accept this amendment.

Mr. Bell

I support what my colleague said. My experience, particularly in latter years through dealing with unfair dismissals and redundancy cases, is that 99.9% of all people in that category opt for compensation rather than for their job back. The employer does not want them back, they are too long detached from their employment and too much bitterness has built up. I am sure the Minister of State would find in the records of the Department that a substantial number of people take a cash settlement rather than look for their employment back.

Mr. Higgins

(Dublin West): I strongly support the amendment. Why can this not be included in the legislation? It does not have implications for anything else in the legislation or for the other machinery. It is a fall back or a protection for workers who, by definition of using this legislation, would be in a vulnerable position. The Minister of State seems to forget that point. The reason this legislation has been introduced, inadequate as it is, is that we are dealing with ruthless employers. Devices will be used to get rid of those employees if they invoke industrial relations machinery to attempt to get justice vis-à-vis the employers. In the event of them being dismissed, they should at least have this fall back. I reread the debate on Committee Stage when the Minister of State admitted the process could take 18 months. It could be a lot longer. I do not see any reason the Minister of State cannot agree with this amendment.

Mr. T. Kitt

Our legal advice is that section 6(2)(a) of the Unfair Dismissals Act, 1977, covers a situation where a trade union invokes an investigation under section 2 in respect of members in a particular employment and the employer then sacks one or more of those employees. I indicated on Committee Stage that I wished to see this legislation in operation for a period before considering whether the provisions of the Unfair Dismissals Act, 1977, need to be revised. A formal review clause of this legislation is incorporated in the Programme for Prosperity and Fairness. Notwithstanding this overall review, I have committed to specifically reviewing the need to protect employee representatives from victimisation under this legislation. I recall that Members of this House accepted my undertaking on this issue on Committee Stage. I maintain the position I adopted on Committee Stage and I oppose this amendment. I gave commitments that I would revert to the House on this issue.

Mr. Rabbitte

We are trying to race against the clock on this important issue. I accept the Minister of State's good faith that he might come back to renovate the Unfair Dismissals Act at some date in the future. However, I am sure he would be the first to admit that he will not get parliamentary time too easily, even if he had the Bill ready, to do that in the immediate future. This is a promise for some time in the future. He admit ted on Second Stage that the existing provisions under the Unfair Dismissals Act do not go as far as the amendment we are now discussing. He said the Unfair Dismissals Act "provides protection which, while not going as far as Deputy Rabbitte's amendment, is considerable". This is the nub of the test of any merit in this Bill. If someone does everything by the book and finds himself or herself without employment as a result, it is unconscionable that we should ask him or her to wait until the final process has worked its way out.

It would be a contribution to the maintenance of industrial peace if someone who has fallen casualty to the conflict can at least deal with it on an unfair dismissals basis and allow the rest of the workers and the employer to make their peace under the terms of this Bill. It would be wise for the Minister of State to facilitate that. The one thing that will invite the solidarity of workers to engage in industrial action is if their colleague, leader or shop steward is sacked. If the individual who has probably organised the union is sacked and if there is not a remedy to deal with it outside what is prescribed for in this Bill, it will ensure solidarity among the rest of the workers and it will lead to fractures of the industrial peace, which the Minister of State does not want. I feel strongly about this issue. I do not want to be derisory about it but, as Deputy Bell remarked to me, it is a case of live horse and one will get grass. If we allow a situation where someone can be dismissed and we do not have redress other than what is envisaged in the Bill, then it is a bad day's work and it undermines the Bill's essence. I ask the Minister of State to rethink it.

Mr. T. Kitt

I know the Deputy is aware of one aspect. The Unfair Dismissals Act links trade union activity during hours of work to the employers' permission to do so. The net effect of the amendment would be to render a dismissal unfair if it resulted from activities on behalf of a trade union during hours of work in circumstances in which the permission of the employer had been refused or had not been sought. I must be conscious of that aspect. The remedies open to an employee under the Unfair Dismissals Act are immediate. A victimised employee can seek redress outside the process of dealing with the claim before the Labour Court. I, therefore, urge the Deputy not to press the amendment until we see how the procedures operate in practice. I appreciate the Deputy must accept my word in good faith. Following a review, if there is not time in the lifetime of this Government to deal with this issue, I hope and presume that whoever is in this position, whether it is me or someone else —

Dáil Éireann debate - Wednesday, 9 May 2001

Industrial Relations (Amendment) Bill, 2000 [ Seanad ] : Report Stage (Resumed).

Dáil Éireann debate -
Wednesday, 9 May 2001