Amendment No. 1 in the names of the Minister and Deputy Howlin arises from Committee proceedings. Amendments Nos. 1, 6, 7 and 44 are cognate and amendment No. 9 is related. These amendments will be discussed together.
Employees (Provision of Information and Consultation) Bill 2005 [Seanad]: Report Stage.
I move amendment No. 1:
In page 3, line 21, to delete ", unless the context otherwise requires".
These are technical amendments which arise from the Interpretation Act. Arising from an amendment tabled by Deputy Howlin on Committee Stage I undertook to revert to these matters on Report Stage. Following advice from the parliamentary counsel, Government amendments Nos. 1, 6, 7, 9 and 44 are brought forward to deal comprehensively with the necessary technical changes required on foot of the new Interpretation Act which came into effect on 1 January 2006.
Amendments Nos. 2 and 45 are related and will be discussed together.
I move amendment No. 2:
In page 3, to delete lines 22 to 25.
This amendment is aimed at ensuring an election to select a representative of the employees rather than an appointment. The Bill currently reads: ‘"appointed" means, in the absence of an election, . . . be such as is agreed by them with the employer'. I am concerned that this method of appointing a representative of the employees could be exploited by employers.
This amendment and related matters were discussed at considerable length on Committee Stage and on Committee and Report Stages in the Seanad. I brought forward an amendment on Committee Stage which was agreed and which resulted in the definition of "appointed" that ensures that employee representatives are truly representative of employees. In other words they must be independent and be elected or appointed by employees. The previous wording had given rise to some concern, but on foot of that I made a substantial change which addresses the concerns of the Deputy and others in this regard.
It is ironic that when unions consider industrial action they are required by law to hold a ballot on the issue but that with regard to selecting a representative there is no such requirement. In terms of consistency, the minimum requirement should be an election.
We should take account of current practice in the workplace. There are already representatives in place for various purposes. If I accepted Deputy Morgan's amendment or similar amendments, I would preclude the existing representatives from taking responsibility in the context of information and consultation. This would be unhelpful. In a large number of workplaces it is the wish of the workers that the existing employee representatives should take on the duties under this legislation. This is facilitated but is not necessarily the case because the provision in the Bill ensures that the employees decide whether existing or new representatives are put in place.
Amendments Nos. 3, 4, 5 and 32 are related. Amendment No. 5 is an alternative to amendment No. 4. Amendments Nos. 33 and 34 are alternatives to amendment No. 32. These amendments will be discussed together.
I move amendment No. 3:
In page 3, to delete line 29.
This amendment deals with the requirement to ensure that the Bill provides for collective consultation. It is because this is an important aspect of the Bill that I have proposed amendments to a number of areas. Amendments Nos. 3 and 4 deal with collective consultation and amendment No. 32 deals with collective representation.
This amendment, which I proposed on Committee Stage, was forwarded to me by the Irish Congress of Trade Unions. The ICTU wants consultation through a consultative mechanism that involves all employees. I am informed that the definition of "consultation" is inconsistent with the definition in article 2 of the directive in so far as it conceives of direct consultation between employer and employee. This is the Minister's proposal. However, the directive involves the consultation between employees' representatives and the employer. This may seem a small point but it is important. The Minister's proposal could cut out the representative role of trade unions. It is important not to circumvent the intention of the directive which is to allow a consultation mechanism between employees' representatives and the employer as opposed to the employer and individuals or groups of employees. Has the Minister had a chance to reflect on this since Committee Stage?
Amendments Nos. 3, 4 and 5 would have the effect of changing the definition of "consultation" and "information" as they are in the Bill and would provide only for consultation and information through representatives.
In a great many enterprises there is already a system of direct information and consultation in place and this Bill provides for that to continue. One of my concerns was that where good practice already exists, we would accommodate it and try to ensure that it continues. We also have, quite clearly, substantial numbers of employees who appreciate having the opportunity of receiving information from and consulting directly with employers and where that is provided for already, I want to ensure it continues.
Amendment No. 4 seeks to make other changes to the definition of information. However, the wording in the Bill is stronger than would be the case with Deputy Morgan's amendment. The Bill provides for examination, which appears to be precluded by Deputy Morgan's amendment. That would weaken the impact of the Bill.
Amendment No. 32 seeks to delete section 11 in its entirety, which would disimprove the situation of a great many employees who currently have the opportunity to seek information and consultation directly with their employer, as well as those who might wish to do so in the future. The wording in the Bill is as close to the directive as possible, in the interest of accurate transposition. I have consulted widely on this issue, listened to the points made by both Deputies and examined the culture already in place in the Irish workplace. I wish to encourage those who have been disposed to having an open system of information and consultation, and in that context, the Bill addresses the requirements of the directive, the need to have a far more open culture and gives some credit to those who already have systems in place that go a long way towards achieving our aim.
Amendments Nos. 33 and 34 deal with the trigger mechanism relating to the obligation on the part of the employer to engage in consultation with employees. The Minister of State has rightly pointed out that many good practices have been built up over the years in partnerships, arising from the model of national partnership, the effects of which have trickled down into the workplace. The workplace partnership model is currently in vogue. In order to enhance the prospects of workplace partnership, it is important that existing models are taken into account in building constructive partnerships between employers and employees. We all accept that if a company wants to progress, it is better that it has employees on board, in terms of the objectives of the company, through that partnership model rather than having them left out of the loop.
The basis for my amendment is that 10%, as stated in the directive and legislation, is quite low. In order to ensure there is a significant number of employees in a company with a serious concern about a lack of consultation, 25% is a more appropriate level at which to establish the trigger mechanism, or in larger companies, a minimum of 250 employees.
I am concerned that the Minister of State would so readily endorse the notion that there is only a relative role here for trade unions or worker representatives. In other words, where good practice is established and direct consultation with employees takes place, there is no role for the trade unions and the Minister of State is indifferent on that issue. However, the existence of a trade union movement and an organised workforce is in the interest of workers and employers. It concerns me that there seems to be an official indifference as to whether trade unions exist and that the norm in the future may well be that individual arrangements for consultation and the passing on of information to workers are set up and do not need the involvement of trade unions. It is my understanding that the directive envisages a strong role for trade unions. It specifically refers to consultation taking place between employees' representatives and employers.
With regard to amendment No. 5, an issue which is causing concern for employers and employees is the definition of information. The definition provided in Article 2 of the directive is vague and this legislation gives us an opportunity to have clarity in the definition section with regard to what constitutes information. The Bill's definition is potentially inconsistent with the directive as it envisages the transmission of information or data to one or more employees rather than solely to employees' representatives. This may cause problems in that a company may satisfy the requirement for the passing on of information if it is given to one or more employees, but only provide selective information or exclude some employees. How can we ensure that the intention of the directive to have participation and knowledge available to employees within their own enterprise is fully vindicated in the legislation that we enact here? We must make sure we are not providing for a vagueness that will allow loopholes to be created by employers who do not want to fully implement the import of the directive and the intention of the Minister of State and the House, that there would be a participative role for workers in an enterprise, that they receive information and data and are included in the loop. This is far preferable to what we have seen so often in the past where workers find out about difficulties in enterprises when it is too late. Had they been informed earlier, they may have been able to do something and been part of the solution, given a different attitude between management and workers.
A different view is now emerging with regard to partnership in the workplace in many good enterprises. As legislators, we should encourage that in the clearest and most proactive way we can. The suggestions contained in amendments Nos. 3 and 5 improve the Bill and are closer, in my judgment, to the intention of the European directive than the relative vagueness I ascribe to the Minister of State's proposals in the legislation.
A number of the amendments tabled by Deputy Howlin and myself are similar, which reflects recent representations and lobbying on the part of the Irish Congress of Trade Unions. Amendment No. 4 is specific in terms of dealing with the issue of information. I appreciate that Deputy Howlin has just dealt with that subject but perhaps the Minister of State could explain why, if my amendment was accepted, it would weaken the Bill. I believe that is what he said a moment ago but I fail to see how that could be so. The thrust of the amendment is an attempt to ensure that collective consultation is occurring, that employee representatives have access to data and that employers recognise them fully. I await the Minister of State's response.
The two amendments referred to by Deputy Hogan are also included in this group of amendments. They seek to increase the percentage at which a trigger mechanism would come into play. His points were also made strongly by IBEC and some employers, The view is that, especially in workplaces with large numbers of employees, the trigger mechanism is too low. I examined it carefully and believe the 10% figure, while considerably lower than for trigger mechanisms in some other jurisdictions, is at a fair level at which to invoke it.
Regarding Deputy Howlin's amendment No. 5 concerning information, we have tried to transpose the directive in question as closely as possible. The fundamental argument is whether the system of direct transmission of information and consultation should be continued. Some employees wish to have the right to deal directly with the employer concerning information and consultation. That is the better system. Although trade unions are not referred to in the directive, they have been included in section 6. The position of trade unions, therefore, is considerably stronger in our transposition of the directive than might have been the case.
I understand Deputy Howlin's point on trade union membership. As a member of one all my working life, I value the input of trade unions in the workplace. As a general principle, I agree with the Deputy that when trade unions are involved in the workplace, relations between employers and employees tend to be better. That is not the case, however, in a great many of our employment places. In unionised workplaces, provision has been made for trade union members to be among the representatives. We have gone much further than was necessary in transposing the directive by taking account of and making provision for trade unions.
The effect of Deputy Morgan's proposal in amendment No. 4 would be to remove the term "to examine". The provision to allow employees to examine and to have the information is an important one and is contained in the directive. The legislation is stronger than it would be were that provision removed.
I respect the views of the Minister of State on these matters. He appreciates the issue at the heart of the two amendments in my name. They aim to ensure there is a functioning role for representative trade unions in the workplace. My concern is not that we should not provide for the exception. It is that the exception may become the norm and a lesser value could be placed on the positive and constructive work done by the trade union movement in many workplaces.
Trade unions do not just represent the grievances of members but take a constructive part in the resolution of difficulties when they arise in the workplace. That cannot be done on an individual basis. Often it requires an outside organiser of a collective to bring mavericks to heel and sanity to a situation, which is not the case when one is dealing on a bilateral basis with individuals.
That role has worked effectively in many workplaces and must be recognised. The economic well-being of the State has come about through a partnership process. The amendments aim to ensure partnership continues. One element of it cannot be written out because we are now so organised and progressive that we can do without it. To follow such a course would be at our peril.
While the Minister of State may not go as far as I would on these matters, he still shares the same overall viewpoint on the value of organised labour. I am concerned that he would not seek to address it more overtly than he has in the Bill. It is not my intention to do away with the prospect of a consultative process outside the trade union norms where there is good management. My concern is that it may become the norm itself rather than the exception.
On amendment No. 32, the Irish Congress of Trade Unions, ICTU, was of the view that removing the section would render meaningless those parts of the legislation for communicating information to employees' representatives. There were concerns that some wayward communication methods, such as e-mail or text message, would replace direct or substantial communications.
Amendment No. 32 refers to section 11. Were Deputy Morgan's amendment to be accepted, it would have the effect of removing the provision for direct consultation. I understand Deputy Howlin's concerns that this may be used to exclude certain people from the communication process.
The way the legislation is prepared it is not possible for that to happen. On Committee Stage, I listed many existing systems for direction consultation that are effective in conveying information to people. If the section were removed, one unintended side effect could be that the good practice built up in the area with the help of the National Centre for Partnership Performance, NCCP, and other bodies would be lost.
I move amendment No. 4:
In page 4, to delete lines 19 to 22 and substitute the following:
""information" means the transmission by the employer to employee representatives of data in order to enable them to acquaint themselves with the subject matter under discussion;".
I move amendment No. 6:
In page 4, line 37, to delete ", unless the context otherwise requires,".
The amendment, discussed with amendment No. 1, was proposed by Deputy Howlin on Committee Stage and arises from the Interpretation Act 2005.
The Interpretation Act 2005 came into force on 1 January 2006. As I advised the Minister of State on Committee Stage, the legal advice I receive on these matters is normally accurate.
Amendment No. 7 arises from committee proceedings and has already been discussed with amendment No. 1.
I move amendment No. 7:
In page 5, line 1, to delete ", unless the context otherwise requires,".
Amendment No. 8 arises from committee proceedings.
I move amendment No. 8:
In page 5, line 6, to delete "Subsection (2)”and substitute “Subsection (3)”.
On Committee Stage I undertook to revert to the question as to whether section 1(4) should be referenced to subsection (2) or (3) of the same section. I consulted with the parliamentary counsel and the advice received is that the reference to subsection (3) is the correct one. Accordingly, I have moved amendment No. 8 to address this issue, which was raised by Deputy Howlin on Committee Stage.
This is the amendment I tabled on Committee Stage. I regarded the referencing as a mistake and I am obliged to the Minister for adding his name to the amendment at this stage.
Amendment No. 9 arises from committee proceedings and has already been discussed with amendment No. 1.
I move amendment No. 9:
In page 5, to delete lines 8 to 17.
I move amendment No. 10:
In page 5, between lines 17 and 18, to insert the following:
"2.—It is hereby declared that a self-employed individual may be a member of a trade union for the purposes of the Trade Union Acts 1871 to 1990 and if he or she is such a member, he or she shall not be an undertaking for the purposes of the Competition Act 2002.".
I also moved this amendment on Committee Stage to insert a new subsection (2). This deals with the extraordinary situation whereby the Competition Act, which is entirely domestic legislation and not an EU requirement, prohibits self-employed individuals from joining trade unions. I signalled to the Minister of State on Committee Stage that I regarded this as a very important amendment because the subsection to which it refers prohibits a number of organised people from being represented by a trade union. They include, for example, individual artists, actors and so on, who are organised and should have the right to have collective agreements with employers. I do not know if it was the dying sting of the outgoing chairman, but in a rather bizarre decision the Competition Authority determined this was anti-competitive. I know from the discussion we had on Committee Stage that the Minister is well disposed to dealing with this anomalous situation. The difficulty, however, is finding a suitable vehicle that does not allow individuals who are genuine sole practitioners, such as barristers, from availing of it and doing collective bargaining in their own right. They do so, however, because I noticed the Attorney General was quite capable of doing a collective agreement on fees for tribunals both with the Bar Council and the Incorporated Law Society. When it suits, apparently, it is not anti-competitive in those instances.
This is an important issue and I hope the Minister of State might be able to take this amendment on board at this stage. It is simply a statement of the Legislature's intent, as follows:
It is hereby declared that a self-employed individual may be a member of a trade union for the purposes of the Trade Union Acts 1871 to 1990 and if he or she is such a member, he or she shall not be an undertaking for the purposes of the Competition Act 2002.
As the Minister of State knows well, I have tried a couple of variations on this particular theme. When the Minister said this was an employees consultation Bill and not the best vehicle to deal with this issue, I sought to amend the Competition Act 2001 itself when the Competition (Amendment) Bill was going through the House. That amendment sought to ensure that a more sane construction would be put on that Act by the Competition Authority. Unfortunately, I did not succeed in that regard. The senior Minister in the Department was dealing with that legislation and it fell foul of the Long Title of the Bill because he said it was confined entirely to the provisions of the Competition Act that were required by the abolition of the groceries order.
Having come at it from a few directions, therefore, if I do not get satisfaction on this amendment I am minded to seek to publish my own legislation on it in Private Members' time. I hope, however, that we will not have to use Private Members' time on this matter. If the Government and Opposition are of a common view it will not be beyond the wit of the Minister, his Department and the parliamentary draftsman to come up with an acceptable form of words to capture what is intended, without creating loopholes for others. I have already argued for this important issue on Committee Stage. Many people are flabbergasted that such a bizarre interpretation of the Competition Act could come about that would deprive them of the rights they have enjoyed up to now to be members of a trade union and have a union represent them in negotiations on working conditions and terms of employment, including remuneration.
I strongly support this amendment, which has already been debated on Committee Stage. I expect we will continue to debate the matter until it is resolved. It is not adversely affecting high flyers who are well able to look after themselves, such as people in RTE or elsewhere who are able to secure substantial salaries. It will affect people such as freelance journalists, however, and other categories including actors and artists in some cases. I wonder how accurate is the Minister's comment that there are some anomalies in it. For example, would it be possible to deal with it by listing the various categories of people who could be recognised under this legislation, while perhaps excluding others as being potential undertakings? I am not at all satisfied with the senior Minister's comments when this matter arose in dealing with a previous legislation, that the Long Title of the Bill did not permit it. It dealt with the Competition Act, so the matter should surely have rested there. Unfortunately, however, the Minister's position on that occasion reflected the fact the Government is stonewalling on this issue and simply does not want to deal with it. That appears to be the case both to me and to a number of other people. I would be happy to hear a commitment from the Minister that he will examine the essence of what this amendment is trying to achieve. If the amendment is not going to be accepted in the Bill before us, perhaps we can have an undertaking on a timeframe as to when legislation dealing with this contentious issue will come before the House.
Deputy Howlin has outlined the position very fairly. As I have indicated previously, I have a good deal of sympathy with the situation that arises here. The Deputy also pointed out the difficulty in dealing with the matter in this context. On Committee Stage, I indicated that I did not consider this Bill to be a suitable vehicle. As it turns out, I was dealing with the Competition Bill on Report Stage, by which time the amendment was ruled out of order in the context of that Bill's Long Title. It certainly seems to me to be entirely inappropriate in the context of the legislation before us, which deals with information and consultation. Even if it were appropriate, however, the fundamental difficulties still arise. It seems quite difficult, in the first instance, to provide for what at this stage is only a decision of the Competition Authority which, strangely in my view, has not been tested in the courts. Deputies know the history of that matter. Had that happened, we would have had a better basis on which to consider a legislative response. Even then, however, before the Government could consider bringing forward some measure to deal with it, the Attorney General's advice would be required on how best to do so. I would certainly feel a lot happier if that were the case. As it turns out, the competition area does not fall within my remit and it is not my business to give any undertaking on it. In the context of this legislation, however, it seems entirely inappropriate that this matter should even be on the agenda or should form any part of the Bill.
I support Deputy Howlin's amendment. The Minister of State should not make the excuse that because it does not fit into this legislation it is not a good idea and cannot be accommodated. All types of legislation passed over the years contain miscellaneous provisions, not least the Competition Act. In various Acts he brought forward, the Minister for Enterprise, Trade and Employment adopted the practice of including extraneous materials which have nothing to do with the legislation, such as the measures we passed last November to increase fines under legislation covering the supply of goods and services, which were included in legislation that had nothing to do with consumer issues. It is not an excuse to state this issue is not important and even if it were it could not be entertained in the context of this legislation.
One of the explanations given on why it has not gone to court is precisely the reason we gave during the course of debate on the Competition (Amendment) Bill, namely, that the evidential burden and the cost of taking on these issues, which the Competition Act should deal with more forcefully and robustly, will fall on the small people who do not have the resources or wherewithal to tackle the big players in the market.
We pointed out that in the grocery trade people in small shops are expected to take on the big multiples and the Minister for Enterprise, Trade and Employment, Deputy Martin, has no problem with that. The reason few cases will go to the High Court on competition issues is the evidential burden involved for people on low income who are not properly organised. This amendment caters for that small group of people on low income who are not organised, and who are deemed not to be organised for the purpose of negotiating a fair deal because of decisions made in the Competition Act. This amendment addresses that gap. It does not deal with many people, but it deals with people in the low income artistic world represented by Irish Equity and it should be entertained.
I gave the Minister for Enterprise, Trade and Employment, Deputy Martin, the advice that he should occasionally have a cup of coffee with the Minister for Justice, Equality and Law Reform, perhaps not this week but during a calmer week, because that Minister seems to be able to bolt any amendment to whatever legislation is passing by on the day. I know he has several hundred amendments tabled for the Criminal Justice Bill. I have seen him bolt anything he likes to previous Bills on Report Stage without having had any discussion on Committee or Second Stages. That Department would prefer if the Minister could legislate by decree and do away with the nuisance value of the Oireachtas having to examine legislation.
Thankfully, the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Killeen, does not normally adopt that view. This is an important issue and the Minister of State recognised its significance. That it is deemed to be in order by the Bills Office means it is appropriate to be inserted in this Bill. That is the case whether the Minister of State likes it or not. I agree it is odd that an amendment specifically crafted to amend the Competition Act was deemed unsuitable for the Competition (Amendment) Bill when it was going through the Houses. We learn from and live with these decisions all of the time.
This would be a clear definition. In a way, it gives more flexibility to the Minister than the more specific amendment I crafted for the Competition (Amendment) Bill. This is a declaration that a self-employed individual may be a member of a trade union and that he or she, for undertaking purposes, shall not be in breach of the Competition Act. I appeal to the Minister of State to accept this amendment in the spirit in which it is offered. It genuinely addresses a difficulty for many people.
The other fundamental difficulty remains, notwithstanding the point Deputy Howlin made, that were this amendment to be accepted, any self-employed individual may be a member of a trade union and he or she would not be an undertaking for the purposes of the Competition Act. While it would encompass the people about whose situation Deputies Howlin, Morgan and Hogan are concerned, it would also encompass many other self-employed people.
Such as who?
The list is almost endless. If one were to resist the temptation of naming barristers, it could include any self-employed contractors, such as publicans, doctors and pharmacists. Almost any group——
They have a choice.
We deal with doctors collectively through the IMO. The Minister is doing so at present regarding the common contract for consultants and GPs. I did so when I was Minister.
If this amendment were accepted, they would all have the potential to have recourse to it.
They would all enjoy the benefits which the Deputy seeks in this instance to bestow on journalists and actors.
The point I am making is that they do.
Under the ruling of the Competition Authority——
Doctors, barristers and solicitors do enjoy that.
The implication of the competition decision is that they are in the same position as actors and others. Were this amendment to be accepted, they would remain in the same position, except that they would enjoy enormous benefits arising from it, while actors and others whom the Members seek to have included would not benefit any more so. That would neither be the intention of the House nor desirable.
- Allen, Bernard.
- Boyle, Dan.
- Breen, James.
- Broughan, Thomas P.
- Bruton, Richard.
- Connaughton, Paul.
- Cowley, Jerry.
- Crawford, Seymour.
- Crowe, Seán.
- Cuffe, Ciarán.
- Deasy, John.
- Deenihan, Jimmy.
- Durkan, Bernard J.
- English, Damien.
- Ferris, Martin.
- Gilmore, Eamon.
- Gogarty, Paul.
- Gormley, John.
- Gregory, Tony.
- Hayes, Tom.
- Healy, Seamus.
- Higgins, Michael D.
- Hogan, Phil.
- Howlin, Brendan.
- Kehoe, Paul.
- Lynch, Kathleen.
- McCormack, Pádraic.
- McGrath, Finian.
- McGrath, Paul.
- McHugh, Paddy.
- Mitchell, Gay.
- Mitchell, Olivia.
- Morgan, Arthur.
- Moynihan-Cronin, Breeda.
- Murphy, Catherine.
- Murphy, Gerard.
- Naughten, Denis.
- Neville, Dan.
- Ó Caoláin, Caoimhghín.
- O’Keeffe, Jim.
- O’Shea, Brian.
- O’Sullivan, Jan.
- Pattison, Seamus.
- Penrose, Willie.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Ring, Michael.
- Ryan, Eamon.
- Ryan, Seán.
- Sargent, Trevor.
- Sherlock, Joe.
- Shortall, Róisín.
- Stagg, Emmet.
- Timmins, Billy.
- Upton, Mary.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, Barry.
- Ardagh, Seán.
- Blaney, Niall.
- Brady, Johnny.
- Brady, Martin.
- Brennan, Seamus.
- Browne, John.
- Callanan, Joe.
- Carey, Pat.
- Carty, John.
- Cassidy, Donie.
- Collins, Michael.
- Cooper-Flynn, Beverley.
- Cullen, Martin.
- Curran, John.
- Davern, Noel.
- Dempsey, Tony.
- Dennehy, John.
- Devins, Jimmy.
- Ellis, John.
- Fahey, Frank.
- Fitzpatrick, Dermot.
- Fleming, Seán.
- Fox, Mildred.
- Gallagher, Pat The Cope.
- Grealish, Noel.
- Healy-Rae, Jackie.
- Hoctor, Máire.
- Jacob, Joe.
- Kelleher, Billy.
- Kelly, Peter.
- Killeen, Tony.
- Kirk, Seamus.
- Kitt, Tom.
- Lenihan, Brian.
- Lenihan, Conor.
- McEllistrim, Thomas.
- McGuinness, John.
- Moloney, John.
- Moynihan, Michael.
- Mulcahy, Michael.
- Nolan, M. J.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- O’Connor, Charlie.
- O’Dea, Willie.
- O’Donnell, Liz.
- O’Donoghue, John.
- O’Donovan, Denis.
- O’Flynn, Noel.
- O’Malley, Fiona.
- O’Malley, Tim.
- Parlon, Tom.
- Power, Peter.
- Power, Seán.
- Sexton, Mae.
- Smith, Michael.
- Treacy, Noel.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilkinson, Ollie.
- Woods, Michael.
- Wright, G. V.
Amendment No. 11 in the name of Deputy Howlin arises from committee proceedings and amendment No. 17 is related. Both may be taken together by agreement.
I move amendment No. 11:
In page 5, between lines 17 and 18, to insert the following:
"2.—In any disciplinary proceedings against an employee, the employee may be represented by his or her trade union representative regardless of whether or not the trade union concerned is one recognised by the employer.".
This is an important issue on which we had some discussion on Committee Stage. I do not want to anchor it in a particular dispute but I was minded to table it on foot of what unfolded with regard to disciplinary proceedings against an employee of Dunnes Stores who was disciplined for wearing a trade union badge. That has been resolved, but a significant issue is involved. If a worker wishes to be represented by a trade union, it should clearly be his right. On Committee Stage, the Minister of State, Deputy Killeen, gave a very full response, for which I thank him. He was somewhat restrained in all he said because at that stage, the issue was before the Employment Appeals Tribunal and the Minister of State did not want to trespass on it. The issue on which I now seek clarity is whether an individual — I am not talking of any particular case — has the statutory right to be represented by a trade union even when it is not recognised by the employer concerned.
On Committee Stage, the Minister of State told the House it was part of the code, but that the code was "of the voluntarist tradition". With regard to the 1999 Industrial Relations Act, the Minister of State informed the committee that the Labour Court must have regard to the code of practice. What does that mean? In essence, the Employment Appeals Tribunal makes findings which are binding. The tribunal and the Labour Court must have regard to the code of conduct. The simple question remains: does an individual employee have a statutory right, an enforceable right to be represented by a trade union official in a disciplinary hearing, where that trade union is not recognised by the employer?
Amendment No. 17 is quite straightforward. It seeks to include in this section the phrase "a trade union or excepted body". I cannot understand why the Minister of State would not accept such an amendment because he is dealing with trade unions almost on a daily basis, as is the Government. It is surely proper that the recognition should therefore be included in legislation. A trade union or excepted body should be able to request information from any undertaking regardless of whether the employer recognises the union or excepted body. I fail to understand why this simple, straightforward amendment is not being accepted and I look forward to an explanation.
With regard to amendment No. 11, the Bill does not make any provision for disciplinary proceedings against an employee, which is one of the difficulties. The matter of disciplinary proceedings does not arise in the directive and is outside the scope of the transposing legislation.
On Committee Stage I spoke about the code of practice, which would deal with the sort of issue raised in the amendment. The code, published as Statutory Instrument No. 146 of 2000, was drawn up between the Department, the Labour Relations Council, IBEC, ICTU, the Employment Appeals Tribunal and the Health and Safety Authority. It sets out best practice for addressing difficulties in disciplinary matters. With regard to individual representation, the code of practice provides that an employee is given the opportunity to avail of the right to be represented by a colleague or a registered trade union during grievance or disciplinary proceedings.
Amendment No. 11 does not deal with the provisions at this point in the legislation because the matter of disciplinary proceedings does not arise under the Bill being discussed.
Obviously the Minister of State did not get the opportunity to have the cup of coffee I advised.
I do not drink coffee.
The issue is correctly deemed by the Bills Office to be before the House, so whether it is outside the scope intended by the Minister of State, we can use this vehicle to do the work. Accordingly, the first argument of convenience put forward by the Minister of State falls. The matter is properly before the House and can properly be inserted into the Bill, as the Ceann Comhairle and the Bills Office have determined.
The Minister of State says a voluntary code exists. We debated this on Committee Stage and I have re-read the proceedings. I am no wiser at the end of that debate regarding the simple question I proposed to the Minister of State, whether an individual has a right to be represented by a trade union in a dispute or a disciplinary situation, if the trade union is not recognised by the employer. The Minister of State talked of voluntarism, the code and the Employment Appeals Tribunal, and having regard to the code, but in two pages of interjections on Committee Stage, the basic question was not answered. If the question I put could be answered now we need not proceed further with it.
On that question, what I said in my initial response was that in regard to individual representation, the code of practice provides that an employee be given the opportunity to avail of the right to be represented by a colleague or a registered trade union during grievance or disciplinary proceedings.
With regard to the Bill not making any provision for disciplinary proceedings against an employee, I did not make the point precluded under the Orders of the House. I understand that it is quite properly before the House. I am making the point that it is inappropriate in terms of what is provided for in this Bill, which is a different matter.
That is the view of the Minister of State but the House has also taken a view. What is proper is determined by the orders of the House. It is not convenient for the Minister of State to accept it, or he does not want to expand the scope of the Bill to accept it. In essence, that is the unlisted argument which is a different one.
The other issue, on which I am still no wiser, is that the Minister of State has repeated for the umpteenth time that there is a right in the code of practice. Is the code of practice enforceable? Is it binding or is it simply an advisory code of practice? Should an employer not accept the code in so far as a trade union representative of an individual should represent an employee with a grievance, subject to disciplinary procedures? Where stands the issue there? Has the employee a right to demand and insist that a trade union representative represent him or her at such a hearing?
How stands the amendment?
Will the Minister of State answer that question?
The procedure of the dispute settling machinery of the State, the Labour Court and others, has been to take full account of the code of practice heretofore. It is not possible for me to instruct them to go further than that nor is it reasonable to expect them to go further.
I am talking about a legal right. Does the legal right exist or is it a voluntary code that an employer can determine not to award such a right? Is it an enforceable right?
It is possible to bring matters arising from the code to the dispute settling machinery of the Labour Court or the Employment Appeals Tribunal in the normal way, that is, as the Deputy and everybody else is aware, in accordance with the voluntarist tradition in the Irish system. As far as I am aware, it works perfectly well. The court or other body is expected to take account of the provisions of the code and has done so heretofore. Frankly, I do not see what the difficulty is in that regard.
Is there a right or is there not a right?
Amendments Nos. 12 and 13 are related and may be discussed together.
I move amendment No. 12:
In page 5, between lines 28 and 29, to insert the following:
"(a) the provisions and procedures contained in the Industrial Relations (Amendment) Act 2001 and the Industrial Relations (Miscellaneous Provisions) Act 2004,”.
This amendment which I raised on Committee Stage was proposed to me by congress. It seeks to prevent the Bill being used to undermine the existing trade union legislation and to put clarity into the Bill. I am advised that the proposed insertion in page 5, between lines 28 and 29, of paragraph (a) which reads: “the provisions and procedures contained in the Industrial Relations (Amendment) Act 2001 and the Industrial Relations (Miscellaneous Provisions) Act 2004” would bring greater clarity to the Bill and avoid the undermining of existing well established legislation. I must reread what the Minister of State said on Committee Stage because I cannot remember why such an obviously good suggestion would be rejected.
The two amendments are identical with the exception of where they sit within the Bill. I too had a representation from congress on the matter. I agree with Deputy Howlin that irrespective of where this amendment is placed it would bring a huge amount of clarity to the Bill and would prevent an employer avoiding responsibility, and surely that is what we should seek. The other points have been covered.
The transposition of the directive is obliged to ensure that the provisions of this legislation do not impinge negatively on the rights under existing legislation on information and consultation. That is what is provided for in the existing section. I understand that what the two Deputies seek to include are the Industrial Relations (Amendment) Act 2001 and the Industrial Relations (Miscellaneous Provisions) Act 2004. Both of these industrial relations Acts deal with dispute resolution procedures in undertakings that do not have collective bargaining arrangements in place and as such provide for issues entirely distinct and separate from information and consultation. The provisions of the industrial relations Acts 2001 and 2004 are separate and distinct from the purpose and intent of the information and consultation directive. They do not deal with information and consultation arrangements and, therefore, do not fall within the scope of what is being transposed in this legislation.
I have had the opportunity to read what the Minister said on Committee Stage which is quite a different reply from the one I have just heard. Apparently now it is inappropriate because these enactments, to which I want a reference in the Bill, refer to dispute resolution and are inappropriate in a consultation mechanism. That is the Minister of State's current position whereas on Committee Stage he said he agreed that these issues were encompassed already. At col. 479 of the Committee Stage debate on 31 January 2006 he said: "I thought about that." The "that" meant to include them explicitly in the Bill. He said that the one potential difficulty is that it would be difficult to include an exhaustive list of legislation. On Committee Stage he thought it was a good idea except that it would be cumbersome and now it is not a good idea because it is inappropriate in that the particular legislation refers to disputes as opposed to consultation. Is there a different reason now than existed on 31 January when we considered these matters on Committee Stage?
The ICTU position is that this is required to ensure that employers do not use structures established under the Bill to avoid the provisions of the legislation referred to in the amendment. Does the Minister of State accept or reject that point?
The point made by Deputy Howlin strengthens the argument in regard to what should and should not be included. I made that argument on Committee Stage, having made the original argument just before that. The point is that nothing in the legislation before the House impinges negatively or otherwise on the two items of legislation. Were one to take the view that, perhaps, it might — I do not see how one could take that view — one could equally take the view that it would impinge on 20 or 30 other items of legislation. That is the point I made to Deputy Howlin on that occasion. I do not see any benefit in doing that. What we have done is to ensure that our obligations in transposing the directive are met and that we do not impact negatively on any existing rights in the whole area of information and consultation. There is no question of impinging on rights in any other area. The point I was making is that were one to include those two items of legislation, how could one sensibly argue that one would exclude 20 or 30 others.
I move amendment No. 14:
In page 6, to delete lines 7 to 15.
This amendment seeks to delete section 4, the impact of which would be to bring the Bill into operation on the occasion of its passing into law. This would avoid the unnecessary delay of waiting until 2008 for application of the Bill. Given that we have been tardy in regard to the transposition of the directive into domestic law, we should act with as much haste as possible to bring the Bill into force.
There is provision in the directive to bring the Bill into effect over a period, starting with undertakings with 150 employees down to undertakings with 50 employees. Deputy Howlin is correct in that it has taken a long time to bring even the first part of it to fruition. In the circumstances and in view of the experience it is sensible to avail of what is provided for under the transposition directive and to allow gradual implementation. It is not an unreasonable timescale in any event.
It is reasonable because it is provided for and it is reasonable to avail of it to allow people consider how best they deal with it in their particular enterprises. Since it is a new concept to many of them, it is sensible to avail of what is provided for in the timescale of the directive. It would not be reasonable to force everybody to immediately implement.
There is no point in arguing further with the Minister of State. I withdraw the amendment.
I move amendment No. 15:
In page 6, to delete lines 22 and 23.
I made the argument on Committee Stage, at the behest of the ICTU, to delete subsection (b) of section 5. Has the Minister of State considered it further?
I am trying to recollect whether I introduced this as an amendment at the request of one of the Deputy's colleagues in the Seanad. I do not think it was in the Bill as originally published but in any event, the option for employees to have the Labour Court request from the employer details relating to the number of employees is important. It appears to be a sensible way to address what could be a major potential difficulty.
Is the Minister of State talking about the numbers?
Yes. I am not certain whether it was in the Bill as published. I have a recollection of being persuaded in the Seanad that I should include it but wherever it came from, it is a sensible provision which strengthens the position of the employees in a situation where an employer was seeking to be extraordinarily difficult. I hope there are not such employers but in the event that there are, the intervention of the Labour Court might be helpful.
I am mindful to accept the logic of the Minister of State's case. Determining threshold and the applicability of the legislation is an important issue. I tabled the amendment at the behest of the ICTU whose analysis was that it was a weakening of the provision but if the Minister of State has thought about it, based on the assurance he has just given, I will withdraw the amendment.
I move amendment No. 16:
In page 6, between lines 25 and 26, to insert the following:
"(2) For the purposes of calculating workforce thresholds, all undertakings that are part of a group shall be regarded as a single undertaking.".
This amendment is to insert a new subsection (2) whereby for the purposes of calculating workforce thresholds, all undertakings that are part of a group should be regarded as a single undertaking. We had a discussion on this matter on Committee Stage and I do not want to trample over the same ground but I would like clarity from the Minister of State and a reassurance that there will not be a loophole to allow the breaking up of a workforce into groups that would avoid the application of the Bill. If we set a threshold, we must ensure that threshold is applied in a logical way to include all people who are part of a group. We cannot have a situation where people in a particular line are a different undertaking to those in another and therefore are not subject to the legislation. The amendment is to ensure that the intent of the Minister of State, the House and the directive is fully enforced in every undertaking and that the numbers are real and not contrived to be below the threshold by some odd break-up or grouping of workers.
I agreed on Committee Stage to examine the strong case made by Deputy Howlin in this area. I was concerned that the potential loophole he pointed to might be one that would be available to people. The Bill applies to undertakings. The original choice was whether to go for undertakings or establishments and we went for this option. The Bill applies to undertakings and would not preclude the provision of information and consultation at the level of establishment by agreement with the parties. That goes without saying. There is also the possibility of setting up arrangements that cover more than one undertaking or different arrangements being put in place for different parts of an enterprise. We dealt with that on Committee Stage.
It is important to note that an undertaking may be part of a group of companies. That is not relevant to working out whether the undertaking has enough employees to fall within the scope of the legislation. What is relevant is the number of employees employed by an individual undertaking, not those employed by a subsidiary of the undertaking. That is the key point. I understand there is some case law in this regard which supports the position taken in the Bill. The advice from the Office of the Parliamentary Counsel is to the effect that in a group of undertakings, each undertaking constitutes a separate legal entity. If that is the case, the threshold must be applied to each company separately but if a number of entities within a group constitute one legal entity, they must be treated as one for the purpose of the threshold. I understand that is Deputy Howlin's point and that is what the Parliamentary Counsel advises me is the position as it stands.
I am obliged to the Minister of State. I have re-read what he said on Committee Stage which was that he would re-examine the position. He agreed that this issue must be clear and that there would not be a loophole. If the Minister of State is now assuring the House that is the case, having got advice from the Parliamentary Counsel, I am happy to accept his word on it.
Amendment No. 17 is in the name of Deputies Howlin and Morgan.
I move amendment No. 17:
In page 6, line 26, after "from" to insert "a trade union or excepted body,".
This amendment extends the same import. A trade union or excepted body should be able to request the information in any undertaking — that is the net issue — regardless of whether the employer recognises it. It is important that basic information on the operations of a company would be available to the trade union and that the resistance of a company to recognise the trade union should not be an impediment to it getting such information. It is linked to the representative issue for an unrecognised trade union that we discussed earlier but it is separate to the extent that we are talking about a separate issue. It is not representation; it is access to information. It is an important issue.
We spoke about this issue briefly earlier. If a trade union has members in an undertaking, it is reasonable that the trade union should be able to request information from the employer regardless of whether the employer recognises the trade union. It is about trade union recognition. We regularly hear the Minister of State lauding the trade union movement and saying it is a useful tool in terms of industrial bargaining or whatever. One of the ways of consolidating that position is to include this amendment in the legislation. It is a straightforward matter.
I must confess I was somewhat confused initially by the taking of this amendment with amendment No. 11. In my consideration of it I had it tied in with the Labour Court provision which relates to a previous amendment. My argument lies more with the provision that the Labour Court should be in a position to get these figures on behalf of the employee of the trade union, the nominated body or whoever. That is the reason I was less clear initially in respect of amendments Nos. 11 and 17. The fact that the Labour Court has a role gets over the difficulty the Deputies envisage in this regard.
It is unfortunate that time and resources would be wasted going through a process to have the Labour Court secure the information when the undertaking would ordinarily have a four-week period within which to get the information. Surely that is reasonable. If this process must go through the Labour Court to get the information, that wastes everybody's time.
I disagree strongly with Deputy Morgan on that point. The authority of the Labour Court is a deterrent in the first instance. If an employer was not disposed to giving the information, he knows that the Labour Court could carry out an examination and would clearly have more power than any individual or any other body. The effect in the legislation of having a role for the Labour Court in this respect is considerably more powerful than any alternative arrangement that might be put in place.
I will not go to war with the Minister of State on this. I would prefer to have my amendment accepted and the explicit right enshrined in statute law, rather than a process which exists for an application for information through the existing labour relations mechanisms. I will not pursue the matter further.
I wish to press it further.