I move: "That the Bill be now read a Second Time."
I am pleased to bring the Industrial Relations (Amendment) Bill 2003 before the House. I propose first of all to summarise the background and context of the Bill, the basic aim of which is to strengthen the industrial relations procedures given effect through the Industrial Relations (Amendment) Act 2001. I will then describe the purpose and reasoning behind each section of the Bill.
The system of industrial relations in Ireland is essentially voluntary in nature. The fundamental approach of successive Governments to industrial relations has been one of voluntarism. There is a consensus among the social partners that the terms and conditions of employment of workers are best determined through the process of voluntary bargaining between employers and workers and between employers' associations and one or more trade unions or staff associations. This approach to industrial relations has served us well over the years. In general, our laws do not try to impose a solution on parties to a trade dispute, but rather are designed to help support the parties in resolving their differences. The State has, in general, confined its role to underpinning voluntarism through the provision of third party industrial relations machinery.
We have a number of dispute resolution services which are at the disposal of workers and employers to assist them in resolving their differences. The Labour Relations Commission alone chairs over 2,000 meetings per year, 80% of which are settled at conciliation. Issues not resolved by the Labour Relations Commission may be referred for investigation to the Labour Court. In 2002, almost 600 cases referred to the Labour Court under industrial relations and other legislation were completed. Despite the fact that the majority of recommendations issued by the court are non-binding, there is an acceptance rate of more than 80% by parties to the disputes.
The Government, however, recognises that there is a need for dispute settling mechanisms in cases where employees wish to be represented by a trade union or accepted body but collective bargaining does not take place. Under Partnership 2000, a high level group comprising representatives from IBEC, the ICTU, the Departments of Finance and Enterprise, Trade and Employment, IDA Ireland and Enterprise Ireland and chaired by the Department of the Taoiseach was set up to devise a mechanism for resolving such disputes. In its final report the group recommended that two distinct procedures be put in place. Its recommendations laid the foundations for the procedures we have in place today.
The first procedure is a voluntary one provided for through the code of practice on voluntary dispute resolution – SI 145 of 2000 – which was prepared by the Labour Relations Commission, in consultation with the ICTU and IBEC, and promulgated by the Tánaiste in May 2000.
In essence, the code of practice provides procedures for the negotiated resolution of these disputes. The process under the existing code of practice for the successful resolution of a dispute can be summarised in four steps. First, the dispute is referred to the Labour Relations Commission, which appoints an officer from its advisory service to assess the issues in dispute. The advisory officer of the Labour Relations Commission works with the parties in an attempt to resolve the issues in dispute. In the event that the issues in dispute are not capable of early resolution by the intervention of the Labour Relations Commission, an agreed cooling-off period is put in place. During the cooling-off period, the commission's advisory service continues to work with the parties in an attempt to resolve any outstanding issues. The commission may engage expert assistance, including the involvement of the ICTU and IBEC, should that prove helpful to the resolution of any differences. If, after the cooling-off period, all issues have been resolved, the Labour Relations Commission disengages. Before disengaging, the commission may make proposals to the parties for the peaceful resolution of any further grievances or disputes. In the event of issues remaining unresolved after the cooling-off period, the Labour Relations Commission makes a written report to the Labour Court on the matter.
The second procedure, a legislated fall-back procedure, was provided for through the Industrial Relations (Amendment) Act 2001. This Act gave new dispute-settling powers to the Labour Court in cases where no arrangements for collective bargaining are in place.
Under the 2001 Act, disputes may be referred unilaterally by an authorised trade union or accepted body to the Labour Court in a case where all of the following circumstances pertain. First, it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures normally used by the parties concerned have failed to resolve the dispute. Second, the employer has failed to observe a provision of the code of practice on voluntary dispute resolution, which I mentioned earlier, or has failed to observe such a provision in good faith.
Third, neither the trade union nor the employees, as the case may be, have acted in a manner which, in the opinion of the court, has frustrated the employer in observing a provision of such code of practice. Fourth, neither the trade union nor the employees, as the case may be, have had recourse to industrial action after the dispute in question was referred to the commission in accordance with the provisions of the code of practice.
If a case satisfies these criteria, it may be investigated by the Labour Court. Such an investigation may result in a recommendation, where appropriate, of the action which should be taken. There may also be a review of all relevant matters which may result in the making of a determination by the Labour Court. A review of the determination by the court may be carried out. It may also be possible to make an application to the Circuit Court for an order directing an employer to carry out the determination or review of the determination. Ultimately, therefore, the 2001 Act provides for the issuing of a binding determination by the Labour Court which is enforceable through the Circuit Court.
The Bill proposes to strengthen the procedures in the 2001 Act in line with commitments in the national agreement, Sustaining Progress. In the negotiations on Sustaining Progress, the trade union and employer organisations agreed that there was a need to enhance the effectiveness of the procedures put in place by the Industrial Relations (Amendment) Act 2001 and the code of practice on voluntary dispute resolution. Section 8.9 of part II of Sustaining Progress sets out seven specific measures which were agreed between the Government and trade union and employer representatives to enhance the effectiveness of existing procedures.
The first measure is the introduction of "an indicative overall timeframe targeting 26 weeks – with provision for up to a maximum of 34 weeks where necessary – for the processing of cases under the dispute resolution code and Act to the point of issuance of a determination, save when an extension is agreed by the parties". This measure sets out the timeframe agreed by the Government and trade union and employer representatives for the completion of cases under an enhanced code of practice on voluntary dispute resolution and the amended legislation. Allowance has been made for the extension of the timeframe from 26 to 34 weeks, if necessary. The introduction of a timeframe will shorten the length of time required to process a case through the code of practice and Labour Court procedures.
The second measure is the amendment of section 2 of the Act to provide that engagement by the court can now take place on the basis of a breach of the timeframes within the code, the exhaustion of the timeframes or the indication at any time by the Labour Relations Commission that it is unable to assist the parties. These provisions shall be substituted for the existing section 2(1)(b), while preserving the remainder of the section. This measure requires changes to the conditions to be met under section 2(1)(b) of the Act of 2001. It will facilitate the transfer of responsibility for cases from the advisory service of the Labour Relations Commission to the Labour Court.
The third measure is the amendment of section 3 of the 2001 Act to allow the court to combine the preliminary and substantive hearings where it considers this to be appropriate. Under section 3, the Labour Court may hold a preliminary hearing to determine whether the conditions set out in section 2 of the Act have been met. This measure will permit the combination of the preliminary hearing with the hearing of the case. However, the Labour Court may still hold a separate preliminary hearing if it so wishes.
The fourth measure is the removal of the provision in the Act which requires the Labour Court to review a determination prior to seeking enforcement of a determination by the Circuit Court. This will be achieved by deleting section 9 and amending section 10 to entitle the trade union or excepted body to apply to the Circuit Court for the enforcement of a determination immediately or on expiry of whatever implementation period is provided for in the determination. This measure was designed to contribute to the speeding up of the processing of cases to facilitate achievement of the agreed timeframes.
The fifth measure is the introduction of a new code which sets out the different types of practice which constitute victimisation arising from an employee's membership or activity on behalf of a trade union or a manager discharging his or her managerial functions, or other employees, drawing, as appropriate, for consideration on relevant definitions in existing codes and legislation and best practice. With this measure it was agreed to introduce a code of practice on victimisation. This code of practice will be applicable only in instances where the code of practice on voluntary dispute resolution has been invoked or where it is intended to invoke it. This code will cover victimisation of trade union members, managers and other employees. Its drafting is the subject of ongoing discussions among the Labour Relations Commission and trade union and employer representatives.
The sixth measure is the amendment of the Act to provide that the Labour Court should have regard to breaches of the anti-victimisation code and, where appropriate, should provide for redress in making its determinations. This measure provides for redress where a breach of the code of practice on victimisation has been established. The decision to provide for redress requires legislative provisions, which are included in the Bill.
The seventh measure is the development of transitional provisions to permit the processing of cases in current disputes where access to the code of practice on dispute resolution as at the date of agreement is not available. This measure provides for the introduction of changes to section 2(1)(d) of the 2001 Act. The section provides one of the four existing conditions which must be complied with before the Labour Court can investigate a case.
The implementation of the measures agreed in Sustaining Progress requires a revised code of practice on voluntary dispute resolution, a code of practice on victimisation and a number of amendments to the Industrial Relations (Amendment) Act 2001. It is also necessary to introduce legislative provisions to provide for a prohibition on victimisation, the processing of complaints of victimisation and, where appropriate, redress.
A new code of practice on voluntary dispute resolution will support the provisions of the Bill. This code of practice has been the subject of discussions among the Labour Relations Commission and trade union and employer representatives. Following these discussions, the Labour Relations Commission prepared an enhanced code of practice on voluntary dispute resolution for my consideration. I will shortly bring forward the necessary statutory instrument under section 42 of the Industrial Relations Act 1990 to give effect to this code of practice.
The enhanced code of practice on voluntary dispute resolution prepared by the Labour Relations Commission sets out the procedures for the effective and expeditious resolution of issues in dispute. A period of six weeks will be provided for the processing of cases under the enhanced code. It is intended that this period will provide for a two week period in which to arrange meetings and commence discussions. The remaining four weeks will be allocated to substantive engagement on the issues in dispute. An advisory officer will be appointed to facilitate proceedings. Accordingly, a dispute which has not been resolved by the Labour Relations Commission within six weeks will be deemed to have been exhausted and the advisory officer will disengage. However, in instances in which real progress is being achieved, the parties may agree a time extension during which the advisory officer will continue to work with them to achieve a resolution. The code also sets out the actions or inaction involved in determining whether a breach of the timeframe has occurred.
As I said earlier, it was agreed to introduce a code of practice on victimisation. This will set out the different types of practice which will constitute victimisation arising from an employee's membership or activity on behalf of a trade union or a manager discharging his or her managerial functions or other employees.
The Bill gives effect to the legislative provisions agreed in Sustaining Progress. Section 1 is a standard section in all Acts. It provides for the interpretation of certain references used later in the Bill and also permits abbreviated references to sections, subsections and other Acts.
Section 2 deletes section 2(1)(b) of the 2001 Act and replaces it with a provision which allows the LRC to investigate a trade dispute if one of three different conditions has been met. These conditions are a breach of the timescales in the amended code of practice on voluntary dispute resolution, the exhaustion of the timescales in the amended code of practice or the receipt of a report from the LRC to the effect that no further efforts by it will advance the resolution of the dispute.
Section 3 replaces section 3 of the 2001 Act, enabling the Labour Court to allocate its resources more efficiently by allowing it to combine preliminary and substantive hearings in a dispute referred to it under section 2(1) of the principal Act, if it considers it appropriate. This section would also have the effect of reducing the length of time taken by the Labour Court to conduct an investigation. Section 4 replaces section 10 of the 2001 Act to enable a trade union or excepted body to appeal to the Circuit Court for the enforcement of a Labour Court determination if an employer has failed to implement its terms. The Labour Court's determination is binding and is enforceable by order of the Circuit Court.
Section 5 provides for the processing of cases which had been referred to the Labour Court under the principal Act at the date of enactment. These cases will be treated, from a procedural perspective, as if they had been referred to the Labour Court under the new legislation. The cases being dealt with under the 2001 Act, as well as any new cases, will benefit from the streamlined procedures contained in this Bill. Section 6 enables the Labour Court to investigate disputes where, at the date of the ratification of Sustaining Progress – 26 March 2003 – access to the Labour Court was not available due to industrial action. This section provides for the processing of cases which were precluded from the procedures of the principal Act because they did not comply with section 2(1)(d) of the Act.
Section 7 enables the Labour Court to give priority to cases referred to it under this Bill, in order to enable it to resolve the dispute within the agreed time frame. Section 8 defines victimisation and allows for acts to be specified in the code of practice on victimisation to be included within the definition of victimisation. A complaint of victimisation may be made in circumstances where there is a trade dispute, in which the code of practice on voluntary dispute resolution has been invoked, or is intended to be invoked, and arises from an employee's membership or activity on behalf of a trade union, a manager discharging his or her managerial functions or other employees.
Section 9 deals with complaints of victimisation and empowers a rights commissioner to hear such a complaint from an employee, trade union or excepted body and to make a decision on the matter. Rights commissioners already hear complaints under 14 different Acts and two sets of regulations and are experienced and well-positioned to adjudicate on the issues involved in any cases which might be taken under this section. This section also provides that a rights commissioner may award compensation, where he or she considers it just and equitable.
Section 10 provides for an appeals mechanism to the Labour Court from a decision of a rights commissioner. Section 11 empowers the Labour Court to take evidence on oath, to administer oaths and to compel a person to attend to give evidence where there is an appeal from a decision of a rights commissioner in a victimisation case, as provided for under section 10. Section 12 allows the Labour Court to refer a question of law arising in an appeal of a rights commissioner's decision under this Bill to the High Court. Also, in regard to an appeal of a rights commissioner's decision under this Bill, this section allows a party to the proceedings before the Labour Court to appeal to the High Court on a point of law only.
Section 13 enables a party to apply to the Circuit Court for an enforcement order of a decision of a rights commissioner or a determination of the Labour Court in respect of a victimisation case, where the decision or determination has not been carried out within a period of six weeks. Section 14 repeals section 9 of the 2001 Act, which provides for a review of a determination by the Labour Court. As I said in regard to section 3, this amendment to the principal Act will facilitate achievement of the overall timeframe and more efficient allocation of Labour Court resources. Section 15 gives the Short Title, collective citation and construction and prescribes that the Bill shall come into operation on such day or days as may be appointed by ministerial order.
The purpose of this Bill is to strengthen the procedures of the existing legislation, as agreed by the trade union and employer representatives. It provides employers and employee representatives with the opportunity to negotiate a solution to industrial disputes in situations where collective bargaining arrangements are not in place. Only if the voluntary process fails will the Labour Court become involved and, as under the principal Act, the court shall not, in its recommendations and determinations, provide for collective bargaining.
I look forward to hearing the views of Members and I commend the Bill to the House.