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Dáil Éireann debate -
Wednesday, 18 Feb 2004

Vol. 580 No. 2

Industrial Relations (Miscellaneous Provisions) Bill 2003: Report and Final Stages.

Amendment No. 2 is an alternative to amendment No. 1. Amendments Nos. 1 and 2 will be taken together by agreement.

I move amendment No. 1:

In page 3, to delete lines 19 to 22 and substitute the following:

" ‘employee' has the same meaning as ‘worker' has in section 23 of the Industrial Relations Acct 1990;".

Deputy Howlin's amendment seeks to use the definition of "worker" as set out in section 8 of the Industrial Relations Act 1990 to define an employee in this Bill. Section 8 of the Industrial Relations Act 1990 defines a worker as follows:

"worker" means any person who is or was employed whether or not in the employment of the employer with whom a trade dispute arises, but does not include a member of the Defence Forces or of the Garda Síochána;

It is not proposed to accept Deputy Howlin's amendment. The definition as set out in the Government amendment is in line with the industrial relations legislation generally.

We looked very carefully at this amendment and considered the points that he made on Committee Stage and we have concluded that the definition of "worker" as set out in section 8 of the Industrial Relations (Miscellaneous Provisions) Bill is adequate. For that reason we do not propose to accept the amendment.

I thank the Minister of State for reflecting on the case I made on Committee Stage. I tabled the original amendment there and have retabled it now to avoid any confusion and difficulties in the future. It was pointed out that the term "employee" used in this Bill is unusual and that the Industrial Relations Act 1990 used the term "worker" and defined it there. The amendment I tabled on Committee Stage was to prevent any inconsistency between the term "employee" in the 1990 Act and this new Bill. I am convinced that the Minister of State has considered it and that there is no difficulty or inconsistency if that assurance has been given again.

Amendment agreed to.
Amendment No. 2 not moved.

Amendment No. 3 is consequential on amendment No. 4 and it is proposed to take amendments Nos. 3 and 4 together by agreement.

I move amendment No. 3:

In page 4, line 2, to delete "paragraph" and substitute "paragraphs (a) and”.

On Committee Stage I indicated that I was considering bringing forward a further amendment on Report Stage to section 2 of the 2001 Act. Section 2 of this Act empowers the Labour Court to investigate a trade dispute in certain circumstances, including where, "it is not the practice of the employer to engage in collective bargaining negotiations". A situation could arise where an employer engages in collective bargaining negotiations for certain grades, groups or categories of workers but not with others. In such cases it may be considered that the employer engaged in collective bargaining in these circumstances and certain grades, groups or categories of workers would not have recourse to the provision of the 2001 Act. To avoid any doubt I propose this amendment to section 2.1(a) of the 2001 Act.

I understand the Minister of State's point but the point I made on Committee Stage, and in tabling the amendment there, was to ensure there would be no mechanism for employers to avoid the import of the legislation by establishing in-house committees. I assumed that the Minister of State's new amendment before us was intended to address that issue. I am not clear whether that issue will be addressed solely by this amendment and whether it is designed to meet the point I made. I thought the Minister of State had accepted my point on Committee Stage that there should be no mechanism for in-house committees being established by employers in order to frustrate this vehicle which we are putting in place for the resolution of disputes. Is that what the Minister of State intends by this and does this amendment meet the point I made on Committee Stage and the argument I made for what is now amendment No. 5?

Our amendment meets the Deputy's requirements. Section 2 of the Bill replaces section 2(1)(b) with the provision which allows the Labour Court to investigate a trade dispute if one of the following two conditions has been met: that the employer has failed to comply with the timeframe specified in the amended code of practice on voluntary dispute resolution or any exclusion of the timeframes agreed by the parties, or the Labour Court receives a report from the Labour Relations Commission that no further efforts on the part of the commission will advance the resolution of the dispute. On the point made by Deputy Howlin, I am satisfied that this amendment adequately covers that position.

Amendment agreed to.

I move amendment No. 4:

In page 4, to delete line 3 and substitute the following:

" ‘(a) it is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute,

(b) either—”.

Amendment agreed to.

I move amendment No. 5:

In page 4, line 26, after "met" to insert "(including the question as to whether it is the practice of the employer to engage in collective bargaining negotiations)".

This deals with the same issue. The assurance has been given regarding the fear about the advice given to establish in-house committees to frustrate the meaningful procedures spelled out in this enactment. The Minister of State said his amendment overcomes that issue. For that reason, I will not press my amendment. I understand the Minister of State has given me that assurance.

Yes. However, one cannot rule out the establishment of in-house committees.

I am happy with that, provided they are not used as a vehicle to frustrate meaningful procedures.

I can give the Deputy an assurance in that regard.

Amendment, by leave, withdrawn.

I move amendment No. 6:

In page 6, between lines 22 and 23, to insert the following:

"(i) the employee, or a trade union or an excepted body of which he or she is a member, having taken any step referred to in subsection (1), or”.

I made the point on Committee Stage that the new section on victimisation is unusually worded in that it prohibits discrimination against persons on the grounds of being a member of a trade union but not specifically on the more traditional and basic definition of victimisation, namely, to punish someone for invoking a procedure set forth in the legislation. My amendment is designed to include the core of victimisation within the definition of the section. The section should specifically cover the process of invoking the legislation as well as membership. That is at the heart of my suggestion. I know the Minister of State indicated on Committee Stage that this was encompassed by the term "trade union membership". However, I would like him to clarify that not only membership of a trade union but also the process of invoking the procedures spelled out in this legislation are covered in the anti-discrimination concept implicit in the Bill.

I support Deputy Howlin's amendment. I would like to have tabled other amendments, but it would have been a copycat exercise and I try to avoid that. One of the reasons I did not table amendments is that the Bill deals with the scraps thrown from the IBEC table and not with the recognition of trade unions in the comprehensive way it should.

That is true.

I am not surprised, given that the Industrial Relations Act 1990 was constructed by the present Taoiseach. Given that this is a limited Bill, I have little enthusiasm to work with it. I would have preferred if the Government had done more to tackle low pay and to ensure that State workers received a proper minimum wage.

We are discussing amendment No. 6 and we have done extremely well. Members have discussed only the amendments before us. I would prefer if the Deputy dealt with amendment No. 6 and did not stray outside it.

I will do that. However, I wanted to explain why I did not table amendments to the Bill. The Government and the employers' organisations are forcing workers to negotiate at partnership level for rights which should be theirs automatically and legally. That is unfortunate. The Bill should have been used as an opportunity to deal with the important issue of enshrining union recognition in law. It is unsatisfactory that this did not happen.

On Committee Stage I agreed to reconsider Deputy Howlin's proposed amendment. I sought further legal advice on the matter and have been advised that the text, as it stands, covers Deputy Howlin's suggested amendment. I accept the point he made today. However, the prohibition of victimisation applies only in the context of a dispute where the code of practice or the voluntary dispute resolution has been invoked or where a request has been made to the Labour Court to investigate a dispute under section 2 of the Act of 2001.

An employer, employee, trade union or an excepted body of which the employee is a member shall not victimise a person for the following reasons: an employee being or not being a member of a trade union or excepted body; an employee engaging or not engaging in activities on behalf of a trade union or an exempted body — engaging in activities on behalf of a trade union includes taking any steps to invoke the code of voluntary dispute resolution; or requesting the Labour Court to investigate a dispute under section 2 of the Act. The text, as it stands, encompasses the amendment tabled by Deputy Howlin. I give him the assurance he sought in that regard.

I fully accept the Minister of State's comments in that regard. I am happy to withdraw my amendment.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 7, lines 27 and 28, to delete "but not later than 6 months after such expiration".

This amendment arises out of Committee Stage debate. The Minister of State moved amendment No. 17 on Committee Stage which is now part of the amended Bill. It stated:

"(7) Notwithstanding subsection (6), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (6) but not later than 6 months after such expiration, if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.”.

My amendment seeks to delete the sub-clause, "but not later than 6 months after such expiration". The import of my amendment is that it would be open to a rights commissioner to entertain a complaint at a time later than six months after the expiration of the period referred to in subsection (6) so that there would not be such a tight closure on these matters. The caveat is already in the legislation that to entertain the complaint after the expiration of time, the rights commissioner must be satisfied there is reasonable cause. That covers the difficulties. If there is not reasonable cause for delay, it will not be entertained. There should not be such tight closure in these matters. The Minister of State may ask me to envisage circumstances in which a complaint could not be made at an earlier date. I cannot do that instantly, but I am sure such circumstances can arise. When we are enshrining it in statute we should not be so prescriptive, we should allow flexibility.

On Committee Stage, I invited the Minister to meet me half way on this matter. If he does not want the deletion of the "6 months after such expiration" he should make it 12 months so that a line could be drawn, with which I would be content. The inclusion of the need for "reasonable cause", which must be believed by a rights commissioner, should be adequate in itself. I hope the Minister will accept the amendment. I know he has referred to two periods of six months, which gives a year. There are and will be occasions when Murphy's law will prevail and this provision will preclude a person taking an action, which is unfair.

If a sustainable case is accepted by a rights commissioner, there should be no legal impediment to the rights commissioner dealing with that complaint. I do not understand why the Minister is so insistent on having such a narrow window of opportunity of six months plus a further six months. While this represents some movement from the Minister's original position, I would like him to go a step further to accept my amendment and accept a 12-month additional time period rather than the six months inserted as a result of the Minister's Committee Stage amendment.

I support the amendment. A person involved in a bad accident who ends up in ill health or in hospital, with for example a back injury, for a period of six months may not be of a frame of mind to take action in the period prescribed under the Bill. A person who has suffered stress could end up in a psychiatric institution. If there is bluff involved, the safety net for that is the rights commissioner who should be able to establish whether it is the case and deal with it accordingly. The Deputy's amendment is sensible, practical and fair to everybody.

We deliberated long and hard over this issue to find a balance. We had a useful discussion on Committee Stage on the extension of the time period in which the rights commissioner could accept a complaint of victimisation. We agreed on the extension of the time period in certain cases. The Bill as amended on Committee Stage extends the time in which a rights commissioner can accept such complaints by six months. This extension is sufficient and results in a total of one year during which the complaint can be made. A year is a reasonable timeframe and provides certainty by being definitive. It is necessary to bring closure within a reasonable timescale. Following the case cogently put by Deputy Howlin, we compromised to a degree.

I take the point about a person who might not be of the right frame of mind. However, even if the period were extended to 18 months the same might still apply. Overall I believe our compromise is reasonable and I hope it is acceptable to the Deputy.

We debated this on Committee Stage and I hoped that the Minister, while not accepting my amendment to make this open-ended, would be willing to allow a 12-month period. The Minister's point about the need for some finality is well made. However, an arguable case could be made that it should be within the ability of the rights commissioner to allow a case to be made to him. If the rights commissioner believes the case and the grounds for delay to be reasonable, he should be able to take the complaint. That principle operates in the courts. We do not define exactly what a judge must do. It is up to the judge to have regard to the specifics of each case put so that unique circumstances, some of which we cannot even envisage, can be entertained. I would have preferred it that way.

However, the Minister wants a deadline to give finality. It would be more reasonable to allow a further six months. I would have been content with what I would have thought was a reasonable compromise from the Minister to amend the six months extension in section 5(6) to 12 months. I am disappointed he would not do even that much, while I accept the arguable case not to delete the timeframe and leave it open. I hope even now the Minister will offer some compromise and change the timeframe to 12 months. We would then have a bargain that would be good for the exceptional case that is bound to arise under Murphy's law. Somebody who convinces a rights commissioner that there are reasonable grounds in presenting a case could by statute be barred by this provision.

While I am sympathetic to the case made, I think that 12 months is reasonable. It is a question of striking a balance. In any dispute 12 months is reasonable. While I accept the spirit of the Deputy's argument it is necessary to stick with the 12 months. I have compromised to this point.

Question put: "That the words proposed to be deleted stand."
Question declared carried.
Amendment declared lost.

I move amendment No. 8:

In page 9, between lines 39 and 40, to insert the following:

14.—The First Schedule to the Industrial Relations Act 1990 is amended by substituting in column (3), at reference number 7, ‘€3,000' for ‘£1,000' and ‘€1,000' for ‘£200'.

On Committee Stage I indicated I was considering increasing the fines that can be imposed by the courts under section 32(4)of the Industrial Relations Act 1946. Section 32 of the 1946 Act relates to breaches of registered employment agreements. Employment agreements are agreements between a worker or a trade union and an employer or an employer body, or representatives of workers and representatives of employers at a joint industrial council, which relate to the remuneration or conditions of employment of workers. These agreements may be registered with the Labour Court. When registered with the court these agreements are legally binding not only on the parties to the agreement but also on others in the class, type or group to which the agreements are expressed to apply.

I have examined the issues and I propose to increase the existing fine of €1,269.70 to €3,000. This is the maximum fine that can be imposed upon summary convictions by the District Court. I also propose to increase the fine that can be imposed for every day during which the offence continues, from €253.94 per day to €1,000 per day.

I welcome the Government amendment. Even if it is only good accounting, the notion of having a maximum fine ending with 70 cent was not good, and rounding up to a reasonable fine is appropriate. While bringing it up to the threshold available to the District Court is a good idea, I thought we had addressed the issue of the thresholds of the District and Circuit Courts in the Courts and Court Officers Acts. I support the amendment.

In view of recent court decisions on including as much detail as possible in primary legislation, the definition of "victimisation" seems to be vague. Does the Minister think that an appendix should be attached to clarify this?

No. Everybody involved in the process is clear on this. The legislation spells out clearly what is being dealt with and there is no doubt about the definition.

Amendment agreed to.
Bill as amended received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Deputies for their contributions to the Bill. I especially thank Deputy Howlin for the work he put into the Bill and the amendments he put forward. I thank the Deputies who contributed on Second and Committee Stages. We have had a useful debate on this Bill and as a result improved its quality. Important amendments have been introduced, for example, the inclusion of further definitions in section 1; an amendment to section 2 of the 2001 Act to ensure that all grades, groups and categories of worker are covered by the Act; the clarification of the definition of "victimisation" in section 8; and an extension of the timeframe in which a rights commissioner can hear a complaint of victimisation in section 9. I have also used the opportunity presented by the Bill to bring in a technical amendment to the Protection of Employees (Employers' Insolvency) Act 1984.

The Bill resulted from an agreed approach by the trade unions and employer organisations, under Sustaining Progress, to enhance the effectiveness of the existing procedures for dealing with disputes where negotiating agreements are not in place. I place on record my appreciation for the trade union and employer organisation representatives involved in the negotiation of this agreement and I acknowledge their achievement in reaching an agreed approach to enhancing existing provisions in the context of disputes where collective bargaining arrangements are not in place. This is another example of the responsible approach to partnership taken by the trade union and employer leadership.

The basic aim of the Bill is to strengthen the industrial relations procedures given effect through the Industrial Relations (Amendment) Act 2001 and to introduce a prohibition on victimisation of employees in the context of a dispute where the code of practice or voluntary dispute resolution has been invoked or where steps have been taken to invoke the code. The Bill will be supported by a revised code of practice or voluntary dispute resolution and also a code of practice on victimisation. The Industrial Relations (Miscellaneous Provisions) Bill will be an important part of the industrial relations legislative framework. This legislation will contribute to greater stability in the field of industrial relations. I thank the staff in my Department for the considerable amount of work they have put into this legislation within a tight timeframe and for their advice and assistance to me throughout the process.

I thank the Minister for his kind comments. I am glad this legislation is to be enacted, but I am mindful of the comments I made on Second Stage that the Bill will not have a great impact. It does a number of good things, particularly in the area of protecting workers from victimisation, but there is a bigger job to do. We must address the issue of the growing non-recognition of trade unions and trade union membership. While I wish God speed and a fair wind to this Bill, I hope that without great delay we will be faced with a more substantial Bill which deals with that core issue.

As a society, we need to come to terms with these matters. The Government lauds the concept of partnership and the role the trade union movement has played not only in building our economic success over the past decade but also in ensuring industrial peace and the protection of workers' rights. These rights cover a number of areas, not only pay and conditions but also safety, which the Minister of State dealt with at the meeting of the Joint Committee on Enterprise and Small Business this morning. This is an important concern for trade unions. It is for all those reasons — pay, conditions and safety — as well as for the avoidance of disputes that the trade union movement is important and will remain important into the future, notwithstanding changing work practices. I would welcome the Government addressing this issue and I hope a Bill to that effect will be introduced before too long.

Many of us in the House are concerned when legislation is agreed within the social partnership mechanism before Members of the House have even seen it. Often Ministers have come to the House unable to accept amendments, even when they are minded to, because they have not gone through the partnership process and a balance has been negotiated outside the House. This diminishes the status of the Oireachtas. I welcome the approach of the Minister of State, Deputy Fahey, to this Bill. Although it was funnelled through the negotiation process of social partnership, he was open to hearing arguments from this side of the House and accepting amendments. I hope that principle will be protected by Government so that the value of the democratic scrutiny afforded by this and the other House is not diminished by agreements done by others who are not elected directly by the people.

Question put and agreed to.