Before the debate was adjourned I outlined in considerable detail the reason I feel so strongly about this amendment. I am equally strongly persuaded by the Minister of State that no matter what I say, he will not take it on board. That is a great pity because, in many ways, this matter is at the heart of the Bill and to say that the person concerned has recourse in the normal way to the Unfair Dismissals Act does not address the situation, but I accept that I have, probably, taken the matter as far as I can.
Industrial Relations (Amendment) Bill, 2000 [ Seanad ] : Report Stage (Resumed) and Final Stage.
Debate resumed on 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.”.
–(Deputy Rabbitte).
Amendment put and declared lost.
We now come to amendment No. 6. Amendment No. 7 is related. The proposal is to discuss amendments Nos. 6 and 7 together. Is that agreed? Agreed.
(Dublin West): I move amendment No. 6:
In page 4, to delete lines 34 and 35.
I will not labour the points which, with related points, I have made repeatedly and to which the Minister of State has repeatedly turned a deaf ear and invoked the Constitution, a favourite tactic not only of the Minister of State, but his party leader, the Taoiseach, Deputy Ahern. Whether it is ground rents, controlling speculation on building land or whatever, the Constitution is marched out to do battle when in reality it is vested interests which are standing in the way of progress in regard to all these matters.
The amendments I have put forward are such that they would delete the idea that an employer could not be compelled to enter into arrangements for collective bargaining. The Minister of State will again use the Constitution, the Abbot and Whelan judgment and so forth against me. That is wrong. Perhaps he could briefly explain to me the reason an employer cannot be compelled to engage in collective bargaining, but can be compelled to have a determination from the machinery of the legislation implemented. What is the difference between the two concepts?
I am surprised that the Bill seems to have emerged from a process of what the Minister of State describes as agreement between the Irish Congress of Trade Unions and employers. Frankly, it shows how far the leadership of the Irish Congress of Trade Unions has moved from its roots and the real conflict at the ground floor of the labour, trade union and working class movement where workers still face, on a day-to-day basis, the problems that rampant capitalism throws up in the form of employers on the fast track to as much profit as they can gain, and the employees are the victims.
The arguments have been well rehearsed in relation to the whole question of collective bargaining. I remind the Deputy that the legal advice is that, in preparing the Bill, various approaches were considered and that the legal advice was not definitive as to whether legislation requiring an employer to give recognition to a particular trade union would be constitutional. The question was not pursued at the high level group, however, and it has formulated an approach which gives primacy to the importance of a voluntarist approach to collective bargaining. That is the position. A voluntarist approach was pursued by the ICTU and IBEC and it is necessary to retain section 5(2) in order to implement the approach agreed by them. That approach focuses on providing the parties with adjudication machinery on pay and conditions of employment. The legislation is focused on a particular situation and at the risk of sounding repetitive, I will not accept the amendments.
Question, "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
(Dublin West): I move amendment No. 7:
In page 4, lines 42 and 43, to delete "but shall not provide for arrangements for collective bargaining".
Question, "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
I move amendment No. 8:
In page 5, to delete lines 11 to 20.
We touched on this issue in the context of the discussion on the proposed excision of paragraph (d) of section 2. The Minister of State drew our attention to section 8, specifically subsections (2) and (3), by way of arguing that it would meet the concerns being expressed under section 2. I am still not able to fully grasp the connection. It appears that the Bill would still be better without this section, from a trade union point of view, because it pulls the rug out from under the trade union for the slightest fracture of industrial peace.
Perhaps my colleague, Deputy Bell, understands it, but I am at a loss to understand the connection between sections 2 and 8 that the Minister of State posited. Section 2, as I understand it, might be termed a series of preconditions for intervention by the Labour Court. Section 8 has nothing to do with preconditions. It is about the process already in train. The sections are quite different. If I am reading this incorrectly, I will be happy to be told about it, but section 8, contrary to section 2, states: "Subject to subsection (2), the Court shall cease its investigation . . . ” That implies that the court is investigating. It should be remembered that for the court to embark on the investigation in the first place it has to meet all the preconditions in section 2. I ask the Minister of State to explain the connection to me.
Section 8(1) also states "the Court shall cease its investigation" and, furthermore, "the Court shall withdraw any recommendation" if it has the slightest belief that any fracture of industrial peace occurred. I repudiate that kind of thinking, both in itself and in terms of the link the Minister of State is making between sections 2 and 8. I cannot follow his thinking in regard to the latter, namely, that after the hurdles of preconditions have been cleared to allow the court to carry out an investigation or a review, if anybody brings to its attention that any form of industrial action took place, the court can call off its investigation or can withdraw its recommendation if it has issued one.
The Minister of State will say that subsection (2) qualifies the position. Perhaps it does to a certain extent. I am not referring here to the link to section 2 because I cannot see how it qualifies that section. I accept it may qualify section 8(1) to some extent, although I am curious about the use of the term "having regard to all the circumstances". I would have thought the subsection should state "notwithstanding subsection (1) above", but it does not. The term "the Court is satisfied by a trade union" is also used in section 8(2). In a situation where a trade union goes before the court and enters a plea to the effect that the industrial action was not too serious in nature, that it would be far more serious to have regard to that clause or it would be more sensible to proceed to a finding or a determination, the Minister of State seems to be saying that subsection (2) can be invoked in such circumstances.
The Minister of State indicated that subsection (2) qualifies subsection (1) and the court, having been persuaded by the trade union, may proceed with its investigation. However, the subsection does not state that the court shall not withdraw its recommendation. The power to make such a withdrawal, which is dealt with in subsection (1), appears to be retained. I understand from where the Minister of State is coming on this matter. He is stating that we do not want any more Ryanair type problems – that was an embarrassing moment for everybody concerned – and that his overriding concern is industrial peace. Many Members would subscribe to that view. However, it is counterproductive to be so prescriptive, to insist on all of these hurdles being put in place and to advocate a belt and braces provision which states that if there is the slightest inkling that there had been industrial action in relation to the subject matter of a dispute, the recommendation will be withdrawn or, if it is still in train, the investigation shall cease. I do not see the point of this provision.
I see the merit of a clause to give the court discretion in terms of whether it should proceed. The Minister of State will have to persuade me on this matter. There may be a simple connection between sections 2 and 8, but I do not see it.
(Dublin West): I hope the Minister listened carefully to what Deputy Rabbitte said and I ask him to listen in the same manner to what I am about to say. I rehearsed my arguments on this matter earlier in respect of the amendment we tabled in respect of section 2(1)(d). The Minister of State did not reply convincingly or logically on that occasion. He must clarify the position now, because this is a critical issue.
The Minister of State insisted that section 2(1)(d) should remain in the Bill and he was successful in that regard. I read that section as saying that if industrial action had taken place after an employer had failed to observe a provision of the code of practice on voluntary dispute resolution, the court would be precluded from using the machinery provided in this legislation. The Minister of State indicated that section 2(1)(d) is modified by section 8, which is the nub of the problem. My understanding is that section 8(2) refers specifically to a situation where the machinery has already come into play. I invite the Minister of State to read section 8(2) which states “If, having regard to all the circumstances, the Court is satisfied by a trade union or excepted body that it is reasonable to proceed with its investigation or review under section 6, it shall so proceed.” Section 6(1) states “Where, in the opinion of the Court, a dispute that is the subject of a recommendation under section 5 has not been resolved, the Court may, at the request of a trade union or excepted body and following a review of all relevant matters, make a determination.” It is quite clear from this, that the process will already be well under way.
In turn, section 6 reverts to section 5, subsection (1) of which states "The Court, having investigated a trade dispute under section 2, may make a recommendation giving its opinion in the matter and, where appropriate, its view as to the action that should be taken having regard to terms and conditions of employment, and to dispute resolution and disciplinary procedures, in the employment concerned.” Section 8(2) only reaches back as far as section 6 and, at the limit, section 5 and does not refer back to the beginning of the process where four conditions are laid down are laid down, under which the court may intervene. If those conditions are met, the court may hear the complaint. If either or all of them have not been met, the court may not do so.
I want the Minister to reply with clarity on my contention that section 8(2) does not make good a problem which might arise under section 2(1)(d). My original amendment was designed to delete section 8 because I was opposed to the idea that the court should be compelled to cease its investigation if industrial action had occurred. That is completely unreasonable, particularly in terms of the way disputes develop in workplaces. In a sense, it is probably better that section 8 is retained in the Bill because what the Minister of State says in reply either will or will not be borne out in the courts. We will have an opportunity to witness what happens in that regard. Before the legislation is placed on the Statute Book, the Minister of State must reply to the serious points that have been raised.
With regard to section 8(1), I am amazed the leadership of the Irish Congress of Trade Unions would agree to such a provision. How far has it come from the coal face of labour relations and the situation in numerous workplaces in the State? How far is it removed from what happens on a weekly and daily basis when certain elements of management or management as a whole campaign against trade union activists and workers who speak up, give leadership in their workplace, are not prepared to take abuse or allow themselves or their fellow workers to be put upon and will fight back? How far has it come from an understanding of the situation where employers take provocative action on a continual basis in some employments and workers must resort to industrial action and lightening strikes because that is the only weapon they have to defend themselves and bring a greater force to bear on the employer rather than waiting for the legislation where finality may come in 18 months, but where, in many cases, it may be longer?
I ask the Minister of State to clarify section 8(2). To what precisely does it refer? What precisely does it qualify? Are we correct in saying that if section 2(1)(d) disqualifies an intervention by the Labour Court, section 8(2) will be too late to save it?
Listening to my socialist colleagues argue the point about section 8, one aspect strikes me. Earlier in the debate we dealt with section 2 which provides for the Labour Court to investigate a trade dispute provided certain criteria are met. These criteria are outlined in the legislation. There was a problem with one aspect of those criteria, namely, section 2(1)(d). There was a proposal to amend section 2 to delete all reference to paragraph (d), but that failed. Section 2(1)(d) has been reaffirmed by the House and will be incorporated in the legislation. Section 8 affords a certain amount of discretion to the Labour Court which will allow it to follow a procedure where it is considered reasonable to do so, as outlined in subsection (2) which states that “it is reasonable to proceed with its investigation”. I accept the clarification both Deputies seek on whether this will happen after the procedure has commenced. It appears that it would be appropriate to only delete section 8 if the application to delete section 2(1)(d) had been successful.
That is right.
There is not much point deleting section 8 given that the House has already ratified the incorporation of section 2(1)(d). In the circumstances in which we now find ourselves, it may be the best of a bad job to leave section 8 as it is and not proceed with the deletion of section 8, as Deputies Rabbitte and Joe Higgins said.
I agree that section 2(1)(d) governs the requirement that there be industrial peace at the time of referral of the dispute. Section 8(2) covers a time period which starts when the case is referred to the Labour Court and ends when a determination is issued under section 6. Section 2(1)(d) requires that industrial peace prevail at the time of referral, whereas section 8(2) requires that peace prevail throughout the process between section 2 and section 6. Deputy Flanagan is right. Perhaps I made the connection between the two sections a bit tighter than it is, but the essence is that the Labour Court has discretion. The amendment would give the Labour Court discretion as to whether it should continue its investigation when industrial action is provoked. Perhaps I gave the impression of a closer link between the two sections. The system has been agreed by the ICTU and IBEC. I cannot accept the amendment to delete lines 11 to 20.
The Minister of State is difficult enough to deal with at the best of times, but this is a horse of a different colour. When we debated section 2(1)(d), the Minister of State said that we were missing a point and drew our attention to section 8 which he said would be all right as soon as we got to it.
It allows discretion.
The Minister of State wanted us to agree to section 2(1)(d) and said that we would get our reward in section 8. It is a great style. I envy the Minister of State for getting away with it, but it is not playing the game according to the rules. It is clear that section 8 does not have any connection with section 2, let alone a weaker link as the Minister of State said. One cannot get as far as an investigation unless it is obvious that one conforms to section 2(1)(d). I agree with Deputy Flanagan that since that is the bind we are in, we would only worsen the situation by excising subsections (2) and (3) now. I wonder what would be the impact of excising section 8(1), (2) and (3). It would, probably, make a marginal improvement, but it, probably, is much of a muchness in so far as the discretion is with the Labour Court in terms of the exercise of its powers under subsection (1). I presume good sense would apply. We would be better off without section 8 in its entirety. Subsection (2) offers some prospect of relief in a reasonable situation or in a situation where a reasonable case can be made to the Labour Court that, notwithstanding anything outlined, it should proceed. The Labour Court would be minded to so proceed in a majority of cases if a reasonable case was set out for it. I am sure the Minister of State did not do it deliberately, but he talked us into section 2 in the belief we were getting relief later, which is not the case. One can only either condemn or admire this. Given the hour of the night, I admire it.
Perhaps the Minister of State should consider putting section 8 before section 2(1)(d) as they are the wrong way around. They cannot be in the proposed sequence because the decision has been taken and the door has been closed.
(Dublin West): We are now in an extraordinary situation because the Minister of State did not just make a little connection between section 2(1)(d) and section 8. The Minister of State argued strongly that we should allow section 2(1)(d) because he categorically said that it was modified by section 8. The Minister of State gave the impression to the Dáil that section 8 would rectify any problems that might arise under section 2(1)(d). Now that we have arrived at section 8, the Minister of State says it was not quite like that. Section 2(1)(d) is a done deal and section 8 has nothing to do with it, the Minister of State now claims.
The Minister of State must right this situation. He got the Dáil to vote with him on section 2(1)(d) on the basis of what he said in the House. What he said was incorrect. I suggest that the Minister of State, with the help of the able officials present in the House, bring in an amendment on his feet as he has the power to do. That amendment should qualify section 2(1)(d) which the Dáil has passed on the Minister of State's recommendation because Members were told that the section would be modified by section 8. I invite the Minister of State to make good what he said earlier, which was that section 2(1)(d) could be the subject of the discretion which section 8(2) gives in regard to a later stage of the process. It should only take a line or two of print to do that, but the Minister of State must do it now to ensure that what was said earlier did not prejudice—-
The Deputy's two minutes are up. Deputy Rabbitte is entitled to make the final contribution.
Perhaps we should adjourn the debate.
Perhaps Deputy Joe Higgins was duped.
I am looking at the notes of what I said earlier and it is accurate. I said that I have given the court discretion as to whether to proceed with an investigation where industrial action occurs during the statutory process. One of my comments during the debate on section 2 was that section 8 as it now stands, following Committee Stage, gives the court discretion to proceed with an investigation where it has been satisfied by a trade union or excepted body that it would be reasonable to do so, having regard to all the circumstances of the dispute. That is the position.
Section 2(1)(d) specifies that the court shall not investigate a dispute where industrial action has taken place before the case came to the court. Section 8(2) specifies that industrial peace must prevail in the period between the court beginning its investigation and its ending with the issue of a determination under section 6. However, that position which I outlined earlier is accurate.
I have not ever been in this situation before. I do not know how we proceed. The Minister of State has read a note into the record. I am sure it is the same note that he read earlier but Members know that in the debate that took place on section 2(1)(d), the Minister of State said we should bide our time as everything would be sorted out when we got to section 8. He elaborated on that thesis. The entire basis of his submission – and the record of the House will show this – was that by the time we got to section 8, we would see that the discretion that Members sought in relation to section 2(1)(d) was in section 8. The later section would deal with the phenomenon we wanted excised from section 2. I am sure the Minister of State did not do this intentionally but he has done it. We have now reached section 8 and we find that the discretion given to the court is solely from the stage at which the court has become seized of the matter. The pre-condition to get that far is an entirely separate stand-alone section that must be overcome.
I accept that the record of the House will show that referred to section 8(2) in the context of my contribution on section 2(1)(d). I accept that was incorrect and I apologise for any confusion caused. My motivation for pursuing that was in the context of comments that I had accepted amendments and I apologise for the confusion caused in the connection of those two amendments.
I have to put the question. Deputy Higgins, you have already made two contributions which was your right.
(Dublin West): I thought I was entitled to another contribution.
No. The Deputy who proposes the motion, in this instance Deputy Rabbitte, speaks last.
(Dublin West): In that case, we should refer it to the Select Committee again.
I am sorry, Deputy Higgins.
Question, "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
We move to amendment No. 9 in the name of Deputy Joe Higgins. Amendment No. 9a in the name of Deputy Rabbitte is an alternative and we may discuss amendments Nos. 9 and 9a together by agreement.
(Dublin West): I move amendment No. 9:
In page 5, line 21, to delete "After a period of 6 months but not later than one year" and substitute "At any time up to one year".
This amendment seeks to shorten the time under which workers may insist on the implementation of a determination of the court following the use of the machinery of this legislation. The Minister of State made a slight concession at Select Committee stage when he brought the period from an incredible 12 months down to six months. Six months after the date of a determination under section 6 the court may, on the application of either party to a dispute, review such a determination and affirm the determination.
The period of six months is still too long. This concerns workers in a vulnerable position and recalcitrant employers. Such employers could get six months from a determination to when that can be reaffirmed, and then a further time-consuming process of moving to the Circuit Court can occur. That is too long and puts workers in an impossible position. I want this changed to "at any time up to one year". That would allow a week or a few weeks, depending on circumstances, for an employer to implement the determination but no longer than that. I presume such a determination would be in favour of the workers concerned. The Minister admitted on Committee Stage that finality could be 18 months although the reality could be much longer, bearing in mind the Circuit Court lists and the possibility of referral to the High Court. A period of 18 months would be completely unacceptable and the Minister could foreshorten that time. If the Minister were disposed to accept Deputy Rabbitte's amendment, which proposes a six week period, I would be inclined to agree with that. The Minister must agree to a shortening of the period, otherwise a hard core of employers will play ducks and drakes with their employees, the Labour Court and other institutions. If they were reasonable and generous minded people, the matter would not necessitate the invocation of the machinery outlined in this Act in any case. A strong case can be made for further foreshortening the period involved and I hope the Minister will accept this.
I support the arguments advanced by Deputy Higgins. The time scales outlined in this Bill are among the main issues which seriously skew this Bill in favour of recalcitrant employers. In the real world, people cannot afford to hang around for a couple of years in the hope that the union they risked joining will make a breakthrough. The reality is that people lose faith after a while. To expect people to have the stamina to see this process through over the period of a couple of years is entirely unfair. In the real world, people operate in a hostile environment in which employers, in all probability, know who joined the union and who did not. People cannot be expected to hang around for a conclusion which could be two years down the road. I urge the Minister to accept my amendment No. 9a which proposes the substitution of “6 weeks” for “6 months”.
I concur with Deputy Rabbitte. This issue could more appropriately be dealt with by way of statutory instrument rather than being fixed in legislation. The Minister could include a provision in the Bill to apply a statutory instrument in this regard. In that way, we could look to practice or experience in this area to indicate an appropriate period and that could be changed by statutory instrument. A six month period could be deemed to be far too long and six weeks could be viewed as far more practical. I agree that it is unacceptable to expect people to endure a prolonged period of time in an environment of bitter daily confrontation in the work place. A six month period would be ludicrous, to say the least.
The approach adopted in this legislation seeks to maximise the scope for parties to reach agreement. Deputy Higgins' amendment would allow either party to immediately apply for a review of a determination in the absence of any discussion between the parties and that is not desirable. My amendment to section 9, passed on Committee Stage, shortened the time scale from 12 months to six months, a reasonable period within which the parties could explore the settlement of outstanding issues before considering the possibility of a review. I cannot accept Deputy Rabbitte's proposal to shorten the review period to six weeks as this would not be reasonable. I made a considerable advance on Committee Stage by reducing the period by six months.
We are in the last chance saloon on this issue. The arguments made are substantive. Having regard to the troubled and choppy waters from which we have emerged, the Minister should reconsider this issue. He could, at least, meet us half way.
(Dublin West): The Minister stated that my amendment would allow the parties to enter into a review at any time following determination in the absence of any discussion. In the real world, people will allow some time for discussion but, in any case, I intend to support Deputy Rabbitte's eminently reasonable six week proposal, the optimum which should be allowed in this matter. I urge the Minister to accept that.
Why is the Minister trying to defend the indefensible? It is indefensible for an employer to refuse to implement a Labour Court finding relating to crucial matters affecting his or her employees. It is not acceptable that a six month period would be allowed prior to a further section of the State's industrial relations machinery coming into play. If one proceeds to the next section, which provides for a six week period from the findings of a review before an application can be made to the Circuit Court, one realises that the six month period is a mere tranche in the overall process. At that stage, we are into Circuit Court lists. People who are familiar with hanging around "The Four Gold Mines" as they are colloquially called or, to be official, The Four Courts, know what lists entail. While the Minister may not be in a position to control the courts, he can control the amount of time provided in this Bill. I intend to withdraw my amendment but I urge the Minister to accept amendment No. 9a.
Amendment, by leave, withdrawn.
I move amendment No. 9a:
In page 5, line 21, to delete "6 months" and substitute "6 weeks".
I reduced the period involved from 12 to six months. Deputy Rabbitte previously mentioned the possibility of reducing the period to three months as a compromise. If Members are agreeable, I will undertake to reduce the period to three months. That is as far as I can go because we must allow people time to discuss their differences.
Is Deputy Rabbitte seeking to amend amendment No. 9a?
I was hoping to, but I thought it was the Minister of State's prerogative to alter amendments. Perhaps I am wrong. I now wish my amendment to read:
In page 5, line 21, to delete "6 months" and substitute "3 months".
Amendment to amendment agreed to.
Amendment, as amended, agreed to.
Amendment No. 11 is an alternate to amendment No. 10 and both may be discussed together.
(Dublin West): I move amendment No. 10:
In page 5, lines 38 to 40, to delete "within one year from the date on which the determination is communicated to the parties".
This amendment seeks to speed up what is a totally inadequate process. I am, simply, seeking that in a situation where a trade union or accepted body is forced to go to the Circuit Court to direct an employer to carry out a determination, that the employer do so within one year. Section 10(b) is somewhat changed as a result of the Minister of State's acceptance of amendment No. 9a. Nevertheless, the timescale should be shortened in order to give some meaning to the legislation.
My alternate amendment No. 11 advocates a slightly different way of measuring, but the objective is the same. As matters stand, the situation is manifestly unfair. My amendment seeks to substitute "within one year from the date on which the determination is communicated to the parties" with "the time specified in that determination" in a case where an employer fails to comply with the terms of a determination under section 6. This is typical of what one will find in a court determination. The amendment, if accepted by the Minister of State, would be welcomed by the court. It is extraordinary that the Bill is so prescriptive as to leave determinations to the discretion of the court. It is the content of the determination which ought to determine when the next phase of the process is triggered. One would think we were speaking about good employers we have been so protective of them. One loses sight of the fact at this hour of the night that what we are talking about is a handful of recalcitrant employers. Yet, every conceivable break is given to them. This is the final break. The trade union, having gone through all the hurdles which we spent all day talking about and complying with the legislation, is left in the situation where the employer refuses to comply. The Minister of State now wants to give the employer another year to make up his or her mind. This is unacceptable and I profoundly object.
Adopting my approach to the matter would not tie the Minister of State's hands as I know his officials will recognise. I am not seeking to specify a particular time; I am, simply, saying that we should leave it to the court to specify in the determination what the timescale ought to be. Different timescales may be required in different circumstances. Cases differ all the time. My amendment takes a much wiser and fairer approach to the matter. I ask the Minister of State to reconsider his approach to it.
This is one of the most important aspects of the Bill. If we allow a further extension of one year after the determination has been made, we will break the heart and soul of workers seeking recognition within their employment. Taking the sequence of events into account, one would then be into the third year of the process. Legislation which ties the hands of workers for that length of time in order to secure what is constitutionally theirs is bad legislation. It will not make any positive contribution to the industrial relations problems we are facing.
Perhaps the Minister of State would talk us through the stages under the legislation as proposed outling the worst case scenario. Deputies have made a very valid and reasoned argument on the basis that we are not dealing with people who wish to engage in a voluntary process of agreement. That is a given. We are dealing with people who, by their very nature, given the previous sections we have passed, are engaging in situations which will not give rise to swift and positive action to ensure resolution of a problem. Perhaps the Minister of State would talk us through this situation. What Deputy Bell said is quite compelling. To think that at the end of this rather protracted procedure there will be an out of a further year is less than acceptable.
On Deputy Higgins's amendment, it is important to understand that the Bill adopts the approach that employers and trade unions clearly have the chance to process and reflect on the outcome of the previous stage before referring the matter still in dispute to the next stage. Deputies have referred to the one year process which will not be availed of by many trade unions. We have given another option under section 9. There are two options available once a determination has been made.
There has been a debate during Committee Stage and again on Report Stage on the likely duration of the whole process. In reply to Deputy Flanagan's point, the Labour Court has a pivotal role in the fall-back procedure. I have been assured by it that it will deal with disputes referred to it expeditiously. Deputies will be aware that a trade union may initiate a process under section 2(1). A trade union may also activate a determination of the court under section 6(i) and that determination is binding. The trade union may wait 12 months before proceeding to the Circuit Court for an enforcement order. I do not envisage many taking up this option. I envisage trade unions availing of the quicker option whereby they can activate the review of a determination under section 9 where we changed the figure from 12 months to six months to three months. I acknowledge that the process should not be dragged out. That is why I introduced an amendment to section 9 which shortens the time scale for activating a review of a Labour Court determination from 12 months to six months. The trade union has the option to activate a review under that section or to wait for 12 months under section 10 before proceeding to seek an enforcement order in the Circuit Court.
The same arguments hold regarding Deputy Rabbitte's amendment. Once a determination has been made by the Labour Court, a trade union has two options when an employer does not comply. We covered much of this ground on Committee Stage. Improvements to the system under section 9 have greatly improved the Bill.
To allow the Labour Court to specify a different time limit in each case would leave the court open to challenges as to the reasons for varying the time limit from one case to another. That is another legal argument. It is legally safer to have one specified time limit in a given procedure. There are two options and a section 9 procedure would be more helpful for trade unions.
(Dublin West): The Bill should be called the Old Man River Bill as the process just keeps rolling along. It is obvious that those who conceived the Bill were not cotton pickers.
The Bill has been marginally improved as a result of Opposition pressure. However, the process is still too drawn out. All that is required to go to the Circuit Court is that the court would reaffirm the determination made and state that it should be effected. Why is the Minister of State giving so much rope to employers to extend the process? People will pause for some time before appealing to the Circuit Court, and the court would argue that this is reasonable. However, even allowing for many months, this is grist to the mill of difficult employers and I will press the amendment.
We are approaching the imaginary guillotine and I do not wish to prolong the debate unnecessarily.
There is no guillotine on this Bill.
I appreciate that, Sir, but there is a guillotine on the Minister of State if he goes back to the Taoiseach without having the Bill agreed. He will not get the promotion I envisage for him with an election around the corner at the end of September. We want to facilitate the Minister of State and I do not wish to do anything to damage his standing.
The Bill is immensely weakened as a result of the Minister of State's refusal to take any of this on board. He pleads section 9 as the reason the period has been foreshortened and so on. It is foreshortened in the sense that the period after which action may be taken is now three months rather than six months. However, the rest of the line states, "but not later than one year" from the date. That point is not being taken into account.
Section 11 outlines that where an appeal is made to the High Court on a point of law, there is not a constraining factor. It appears that an employer can go to the High Court on a point of law whenever he or she wishes to do so. Deputy Higgins's Old Man River is apposite. I am not afraid of this Bill dying because it does not amount to a great deal.
Will the Minister of State seriously consider amending this section along the lines of leaving the discretion with the court in terms of the time specified in the determination? I do not accept the contention that the Labour Court would be open to legal action as a result of varying the terms from one case to another. It does so all the time, depending on the circumstances. Any employer who took the Labour Court to court because it varied the time from one case to another would soon get his or her answer. The courts would not unreasonably intrude into the affairs of the Labour Court where it was doing its business as it saw fit.
I accept Deputy Rabbitte's expertise in this area. However, I would like to share the Attorney General's advice on this point.
The Attorney General is another well-known trade unionist.
I will share his advice. He points out that, having had the opportunity to consider the proposal, he believes it would be unsafe to allow the Labour Court to decide on a time limit. He further points out that if the Department wishes the Labour Court to have such a power, the Bill would have to set out the principles and policies as to how the court would determine what time limits should apply in different cases, otherwise such a proposal could be open to constitutional challenge. It is the Attorney General's view that the approach set out in the Bill is the safest approach.
Question: "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 11 not moved.
I move amendment No. 11a:
In page 6, line 7, after "may" to insert ", within 21 days after the date on which the determination is made,".
This amendment concerns appeals to the High Court on a point of law. Such appeals would be by employers, as few trade unions appeal to the High Court for obvious reasons. I am seeking to circumscribe the time limit by inserting the words "within 21 days after the date on which the determination is made". There has to be an end to this. We will all be in receipt of a pension when this process ends. The period has to be circumscribed and I suggest 21 days.
I appreciate that Deputies are trying to co-operate, but I oppose this amendment. The legal advice is that it is standard practice when one provides for an appeal to the High Court on a point of law, to leave the issue of procedure to be prescribed by the Committee on the Rules of the Superior Courts. I will take up the issue of providing for procedures to be agreed by the committee when the Bill is passed. I agree with the Deputy that 21 days is an appropriate time scale and I will recommend this period for adoption by the committee. I hope the Deputy will withdraw the amendment on that basis.
Amendment, by leave, withdrawn.
Bill reported with amendment, received for final consideration and passed.