Amendments Nos. 19 to 23, inclusive, are related to amendment No. 18 so amendments Nos. 18 to 23, inclusive, may be discussed together.
Employees (Provision of Information and Consultation) Bill 2005 [Seanad]: Report Stage (Resumed) and Final Stages.
I move amendment No. 18:
In page 7, to delete lines 16 and 17 and substitute the following:
"6.—(1) "Employees' representative" means such trade unions as are, representative of the employees or where there is no such trade union, such persons that are directly elected by the employees in the undertaking.".
This amendment deals with the definition of "employees' representative", which means such trade unions as are representative of the employees or, where there is no such trade union, such persons who are directly elected by the employees in the undertaking. The provision for directly elected persons was dealt with in an earlier contribution. The definition, as proposed, is more in line with the definition of employees' representative in other legislation governing employment protection.
Section 6(2) allows for "the election or appointment of one or more than one employees' representative". My amendment No. 19, however, provides for the election of the employees' representative, which is clearly much more democratic. It would ensure that employers cannot simply appoint somebody whom they control.
Trade unions should be capable of nominating people for election to those positions once they have members in the undertaking, whether or not trade unions are recognised by the employer for collective bargaining purposes. Amendment No. 20 seeks to insert that provision.
Amendment No. 21 deals with elected employee representatives having a fixed term of no longer than three years, after which they must seek a fresh mandate. We would all agree that elections at frequent intervals keep us on our toes and ensure that we do not become too stale.
Amendment No. 22 provides for trade unions to be able to refer matters of dispute, under subsection (5), to the Labour Court for determination. That provision has been established somewhat in one of the earlier comments by the Minister of State but I would like to hear his view on that matter nonetheless.
Amendment No. 23 would give the court power to order fresh elections where a complaint has been made. I suppose it would be the employees' version of the High Court referring it across. I would like to hear the views of the Minister of State on these amendments.
As I stated on Committee Stage, it took a considerable amount of work to bring section 6 to the stage at which it appears in the legislation. It is a balanced provision. As I stated earlier, it provides a role for trade unions in the legislation, which is more than can be said for the directive.
I am concerned about the impact of any of Deputy Morgan's amendments or all of them taken together. The provisions of section 6 as it is presented are extraordinarily well-balanced and allow for trade union representation on a pro rata basis when people in trade unions work in the undertaking. The members of the forum must be employees of the undertaking and that is entirely in accordance with best democratic principles.
If any of these amendments were to be accepted, it would seriously unbalance section 6, which took an enormous amount of work and which accounts to a great extent for the delay in coming forward with the legislation in the first place. As I stated on Committee Stage, I am not disposed to undermine in any way the provisions here.
In one of the amendments, Deputy Morgan refers to the Labour Court. That is provided for in section 6(5), which states that where a dispute arises under this section, it may be referred by the employer, trade union, excepted body or one or more than one employee to the Labour Court. That is a good safeguard in the event of difficulties with regard to the provisions of this section.
Interestingly, the Minister of State mentioned best democratic principles. One of the best democratic principles is ensuring an election takes place, providing the way of dealing with it and placing fixed terms on the mandate a representative would receive from fellow employees. That is in keeping with the best democratic principles to which the Minister of State referred.
The Minister of State sets aside some of these amendments much too lightly. I am disappointed with that. These came forward on foot of ICTU recommendations. They have been well thought out and carefully considered. The Minister of State did not give them that level of consideration. Best democratic principles must include fixed terms for elected employee representatives.
I ploughed this furrow on Committee Stage. I decided not to resubmit my amendments on Report Stage. I am glad to have the opportunity afforded by Deputy Morgan taking them on and carrying them to the next step. A coherent enough argument was made by the Minister of State. However, it was not compelling. I still support the ideas and views expressed by Deputy Morgan on this occasion.
It would be difficult to exaggerate the extent to which this section was considered in the various processes undertaken before the Bill was published. I will not bore the House with the details, some of which would hardly be appropriate in any event. It is a balanced response to some of the submissions which were made. I am aware of the views of congress and of the employers. I am perfectly aware that neither may be particularly happy with the section and perhaps that is a good sign.
In view of the amount of work it took and the strong arguments I made in response to Deputy Howlin on Committee Stage, were I to in any way dismantle what was reached, I would do considerable damage to my intent to transpose the directive as accurately as possible in a fair and balanced manner.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 19:
In page 7, to delete lines 18 to 20 and substitute the following:
"(2) Subject to the provisions of subsection (3) and Schedule 2 of this Act, the employer shall arrange for the election of employees representative under this section.”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 20:
In page 7, to delete lines 21 to 27 and substitute the following:
"(3) A trade union or excepted body that has members in the undertaking and employees in the undertaking shall be entitled to nominate persons for election to the employee forum.".
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 21:
In page 7, to delete lines 28 to 31 and substitute the following:
"(4) A person elected to the position of employee representative shall hold that office for a period of no longer than three years.".
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 22:
In page 7, to delete lines 32 to 36 and substitute the following:
"(5) Where a dispute arises under this section, it may be referred by trade union or excepted body or one or more employees to the Court for determination.".
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 23 not moved.
Amendment No. 24 in the names of Deputies Howlin and Morgan will be discussed with amendments Nos. 25 to 27, inclusive, in the name of Deputy Hogan as they are alternatives to amendment No. 24.
I move amendment No. 24:
In page 7, to delete lines 37 to 47 and in page 8, to delete lines 1 to 39 and substitute the following:
7.—(1) An employer shall enter into negotiations with the representatives of employees to establish information and consultation arrangements.
(2) Within 6 months from commencing negotiations, the parties shall agree to establish an information and consultation arrangement by means of—
(a) a negotiated agreement under section 8, or
(b) the Standard Rules under section 10 (as set out in Schedule 1).
(3) The period of 6 months referred to in subsection (6) may be extended by agreement of the parties.”.
I propose we discuss amendment No. 24 separately because amendments Nos. 25 to 27, inclusive, are in the name of my colleague Deputy Hogan and are about changing thresholds. Amendment No. 24 concerns replacing the section. With the permission of the House I would prefer amendment No. 24 to be discussed separately.
The amendments should be taken together because if amendment No. 24 is accepted, the House will not have the opportunity to discuss the other amendments.
I see the point. In the unlikely event that my amendment which replaces the section is accepted, a new section is created. The House could probably take that gamble and risk it. However, I accept the Leas-Cheann Comhairle's ruling.
I would like to hear the two sides of the argument.
I thought the Minister of State might. The purpose of my amendment is to deal with section 7 as it is drafted, which concerns the process for establishing information and consultation arrangements. I suggest the replacement of section 7 with a new section 7. As I explained on Committee Stage, replacing the section as I suggest means employees in undertakings who meet the employee's threshold already set out in section 4 will have an automatic right to information and consultation. The employer is required under my proposal to enter into negotiations on arrangements for information and consultation with them.
The Minister of State's proposal can be categorised as an opt-in provision, which was available to the Minister of State on other directives from the European Union and not taken. Normal practice for the Government in dealing with these matters is not to use the opt-in model of this Bill. The facility of opt-in was available for the working time directive and the Government chose not to use it. I have not heard the rationale as to why it was chosen on this occasion. I genuinely believe the section 7 I propose to insert is better. It is more in keeping with the normal practice of the Government in past transpositions of European directives. It is a clear vindication of rights to consultation in those enterprises which meet the thresholds we set out on numbers of employees to be covered. I hope the Minister of State will either accept the amendment or explain why he is departing from normal practice in this instance.
There is no point repeating everything that has been said. There was a fairly lengthy discussion on this topic on Committee Stage. To spend any longer on it would be a waste of time because the Minister of State has indicated he will not move on the point. I await his comments.
I made my position on the trigger mechanism clear when we discussed amendment No. 1. I have already explained it and it is set out again in these amendments. I am happy to hear what the Minister of State has to say.
Deputy Morgan is right to say that some of this issue has been dealt with on Committee Stage and earlier today. There is one provision already in Irish law, of which Deputy Howlin is aware, namely, section 10(1) of the Transnational Information and Consultation of Employees Act 1996.
The name of that Act tripped off my tongue.
It is the Act which accords most closely with the provisions of this directive being transposed into law. That is one reason for the provision. Most of the submissions received during the consultation phase took the view that this would be the appropriate way to go. It has not posed a difficulty previously and as the role of the Labour Court has been included I do not anticipate any difficulties with this provision. I have already answered Deputy Hogan's points on the level, 10% is reasonable and fair.
There is not much point in prolonging the debate if the Minister of State has closed his mind to it. My proposal, however, is a better section 7 than that which is in the Bill. I will leave it to the House to determine this.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 25 to 27, inclusive, not moved.
Amendment No. 29 is an alternative to amendment No. 28. Amendments Nos. 29 and 30 are cognate so amendments Nos. 28 to 30, inclusive, will be taken together by agreement.
I move amendment No. 28:
In page 8, to delete lines 40 to 45 and in page 9, to delete lines 1 to 43 and substitute the following:
"8.—(1) An agreement establishing information and consultation may be negotiated by the employer and the employee representatives (to be known and in this Act referred to as a "negotiated agreement").
(2) A negotiated agreement shall be—
(a) in writing and dated,
(b) signed by the employer,
(c) approved by the employees,
(d) applicable to all employees, and
(e) available for inspection by those persons and at the place agreed between the parties.
(3) For the purposes of subsection (2)(c), the agreement shall be regarded as having been approved by the employees where a majority of those employees employed in the undertaking who cast a preference do so in favour of the terms of the agreement.
(4) The employer shall ensure that the procedure for the casting of a preference referred to in subsection (3) is confidential and capable of independent verification and of being used by all employees.
(5) A negotiated agreement shall include reference to the following matters:
(a) the duration of the agreement and the procedure, if any, for its renegotiation;
(b) the subjects for information and consultation;
(c) the method and timeframe by which information is to be provided;
(d) the method and timeframe by which consultation is to be conducted; and
(e) the procedure for dealing with confidential information.
(6) At any time before a negotiated agreement expires or within 6 months after its expiry, the parties to the agreement may renew it for any further period they think fit.
(7) If no new negotiated agreement is made by the parties then the standard rules in Schedule 1 of this Act will apply.
(8) A negotiated agreement renewed under subsection (6) within the period of 6 months referred to in that subsection shall be deemed to have remained in force from the date it would otherwise have expired.”.
This was discussed extensively on Committee Stage but it warrants being raised again here. The purpose of this new section 8 is to provide only for collective consultation with employees' representatives to ensure that the outcome of any negotiations must be approved by a secret ballot of all employees.
I have dealt with most of this on Committee Stage. If for example we were to delete the words "establishing one or more information and consultation arrangements" we would remove the flexibility which might be very important in situations where different sections in an undertaking have different responsibilities or perhaps are on different campuses. Issues might arise in one branch that would differ from those in another branch, for example, downsizing might impact on one branch but not necessarily on others.
It is important to have that flexibility. I have dealt with the direct negotiations which is very important in the Irish experience and is already in place in several undertakings. For those reasons I strongly oppose this amendment.
Amendment, by leave, withdrawn.
I move amendment No. 29:
In page 9, line 3, to delete "which" and substitute "whom".
This amendment and amendment No. 30 propose grammatical alterations.
Amendment agreed to.
I move amendment No. 30:
In page 10, line 18, to delete "which" and substitute "whom".
Amendment agreed to.
Amendment No. 31 arises out of Committee Stage proceedings.
I move amendment No. 31:
In page 10, to delete lines 27 to 30.
In section 9 which deals with pre-existing agreements the relevant subsection (3)(b), which I propose to delete, is not exactly clear:
(3) For the purposes of subsection (2)(c), a pre-existing agreement shall be regarded as having been approved by the employees—
(b) where the result of employing any other procedure agreed to by the parties for determining whether this agreement has been so approved discloses that it has been so approved.
My amendment which proposes to delete that subsection would mean that all pre-existing arrangements would be required to be approved by a majority of employees by way of a secret ballot. Is the Minister of State disposed to accept that as a proper way to proceed?
Following advice from the Office of the Parliamentary Counsel on Committee Stage I brought forward an amendment to delete the option for employee representatives to approve a pre-existing agreement. This amendment was brought forward to address concerns that in practice the Bill would not allow existing employee representatives to approve the pre-existing agreements.
Amendment No. 31 has the effect of deleting the other option of allowing the parties to agree any other procedure for approving a pre-existing agreement. It is desirable to retain this option in the Bill as it allows the parties to use any other procedures agreed by them to approve a pre-existing agreement. In some instances such procedures are in place. I do not want to tie people into procedures in which it is impossible for them to progress. In that case the advice of the Parliamentary Counsel informs my view of this amendment.
To require a ballot of the workforce to approve a pre-existing agreement would not tie people up in too much red tape. I do not understand what other mechanisms the Minister of State has in mind. He might reassure us by giving examples of appropriate alternatives to the secret ballot vote, which is the normal way of reaching conclusions on such matters.
The original difficulty arose because had the wording not been changed it would have been impossible to approve a pre-existing agreement at all.
That is not a problem.
Existing employee representatives who de facto have constructed, approved and built up the procedure would not be in a position to approve it. That is the nub of the problem of how it would be approved.
I understand the difficulty the Minister of State addressed in his amendment, to allow a mechanism to approve pre-existing arrangements. I support that. I am asking however that the alternative mechanism for endorsing pre-existing arrangements be deleted to require a secret ballot of employees to make such a decision. If the Minister of State does not wish to accept my view on this matter, could he explain what other mechanisms could or should be employed to make such a determination?
I have illustrated one procedure, namely that employee representatives appointed specifically to approve an agreement could do so.
Who?
Employee representatives. That is one example which differs from a secret ballot. It allows the parties to use whatever system may already be in place in an undertaking but also allows parties to put in place a weighted system with numerous branches containing slightly different procedures, and where perhaps the parent plant has a great number and some of the others have quite small numbers. In those circumstances it might be agreed that a weighted system should be in use which would enable the greater number, or their representatives, to approve. That would not require a ballot.
Question, "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Amendment No. 32 in the name of Deputy Howlin has already been discussed with amendment No. 3.
I move amendment No. 32:
In page 11, to delete lines 46 to 47 and in page 12 to delete lines 1 to 26.
Question, "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Amendments Nos. 33 and 34 not moved.
Amendment No. 35 in the names of Deputies Howlin and Morgan arises out of committee proceedings and amendment No. 36 is an alternative. Amendments Nos. 35 and 36 will be discussed together.
I move amendment No. 35:
In page 12, to delete lines 33 to 49 and in page 13, to delete lines 1 to 11 and substitute the following:
"13.—(1) An employer shall not do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her well being in relation to the performance of his or her functions as an employee representative in accordance with this Act.
(2) An employee representative shall be afforded any reasonable facilities, including paid time off, that will enable him or her to perform his or her functions as employees' representative promptly and efficiently. Employee representatives will also, subject to the provisions of section 14, have the facility to avail of the assistance of experts and such experts may accompany employee representative to meetings of the employee forum when requested. Following the passing of this act and no later than six months following its enactment, the Minister following consultations with representatives of employers and workers will make regulations setting out the minimum facilities to be afforded to employee representatives by their employers.
(3) An employee, a trade union, an excepted body on behalf or with the consent of the employee may present a compliant to a rights commissioner that the employer has contravened subsection (1) in relation to an employee.
(4) A complaint under subsection (3) shall be presented by giving notice of it in writing to a rights commissioner.
(5) Where a complaint is presented to a rights commissioner under subsection (4) the rights commissioner shall—
(a) give the parties an opportunity to be heard and to present any evidence relevant to the complaint,
(b) give a decision in writing in relation to the complaint,
(c) communicate the decision to the parties, and
(d) furnish the Court with a copy of the decision.
(6) A decision of a rights commissioner under subsection (5) shall do one or more of the following:
(a) declare that the complaint is or, as the case may be, is not well founded;
(b) direct that the conduct the subject of the complaint cease;
(c) require the respondent to take such action as in the opinion of the rights commissioner is just and equitable in the circumstances and which may include the payment to the complainant of compensation of such amount which, the opinion of the rights commissioner, is just and equitable but not exceeding 2 years remuneration in respect of the employee’s employment.
(7) A complaint under this section may not be presented to a rights commissioner after the end of the period of 6 months from the occurrence or, as the case may require, the most recent occurrence of the conduct to which the complaint relates.
(8) 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.
(9) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.
(10) A rights commissioner shall maintain a register of all decisions made by him or her under this section and shall make the register available for inspection by members of the public during normal office hours.
(11) A party concerned may appeal to the Court a decision of a rights commissioner under section 5 and if the party does so, the Court shall—
(a) give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal,
(b) make a determination in writing in relation to the appeal affirming, varying or setting aside the decision, and
(c) communicate the determination to the parties.”.
By means of this amendment I am seeking a number of changes to strengthen the meaning of "penalise" in line with the definition of victimisation in the Industrial Relations (Miscellaneous Provisions) Act 2004 and to provide redress to the employee victimised by an employer through the mechanism of the Labour Court or through a rights commissioner.
I also seek to have trade union employees granted paid time off from work to allow them to carry out their duties as employee representatives and require the Minister to make regulations prescribing the minimum level of facilities to be granted to such employee representatives. These are positive proposals and I am sure the Minister of State will have no difficulty accepting them.
I have received correspondence from the office of the Minister of State, Deputy Killeen, regarding this matter. I expressed concern about this section in the hope that there would not be frivolous complaints by a small number of people which would trigger off unnecessary activity and perhaps damage the cohesion of the employer-employee relationship. The Minister of State has indicated to me that he is satisfied that in the current wording of the legislation this will not happen, and he has given me an undertaking it will not. I accept his word and if the legislative system is robust enough to stand up to that concern, I will be happy. However, if regulations are required to ensure this is further strengthened so that there are no unjustifiable frivolous complaints, they would be important for employers and the workplace partnership.
On Committee Stage I undertook to write to Deputies Howlin and Hogan on various issues raised which were relevant to these two amendments, and I wrote to both Deputies last week. The Bill provides in section 12 and Schedule 3 for many of the matters raised in Deputy Howlin's amendment in particular. The Bill provides for the right of employee representatives to make a complaint to a rights commissioner if they believe they have been penalised by an employer under section 13. The Bill has already provided that an employer shall not penalise an employee's representative — it is an offence for an employer to do so. However, an amendment on Committee Stage in the Seanad, tabled by Senators O'Toole and McDowell, called for redress procedures to be provided for in the Bill, and I took that on board following the case made by them.
In essence, the Bill now provides that employee representatives who believe they have been penalised can make a complaint to a rights commissioner, whose decision can be appealed to the Labour Court and enforced by the Circuit Court. In the case of non-compliance with the rights commissioner's decision, the decision can be referred directly to the Circuit Court for enforcement. A rights commissioner can now order the employer to pay compensation up to a maximum of two years' remuneration and in cases of non-compliance, the Circuit Court may order the payment of interest. All this arises from the amendments which I effectively accepted from Senators O'Toole and McDowell in the Seanad. I set out ancillary points in my letter but that deals with the principal concern of Deputy Howlin in that regard.
With regard to Deputy Hogan's concern, the current text of section 13 does not allow trivial or vexatious claims to be made to a rights commissioner. It is a fairly difficult balance to strike but in view of the system in place and the fact that appeals can be made to the Labour Court, with enforcement by the Circuit Court, people will be more than a little reluctant to go down that road. We have struck a reasonable balance with what we have provided.
I am grateful to the Minister of State for writing to me. He did so after Committee Stage and pointed out that his view of a definition of penalisation was adequate to give protection. The import of the amendment I am suggesting is to broaden the definition of "penalise" and make it similar to the definition of victimisation in the Industrial Relations (Miscellaneous Provisions) Act.
The Minister has gone a good distance down the road I wanted him to go. I wanted to put my concerns on the record. I have an optimistic view that things will work out reasonably well. However, we must ensure that the people who take on these representational roles are not penalised, that there are mechanisms to protect them and that people will not feel loath to take on such roles because of feeling they would be significantly disadvantaged by doing so. I know that is the intent of the Minister of State and I hope the formulation he has agreed to will be adequate. I was of the view that my suggestions were better.
Question, "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Amendment No. 36 not moved.
I move amendment No. 37:
In page 13, to delete all words from and including "enactment" in line 37 down to and including "enactment." in line 39 and substitute "enactment.".
I thank Deputy Howlin for drawing my attention to this matter on Committee Stage and for retabling his amendment today. After a detailed discussion with the Office of the Parliamentary Counsel on the value and necessity of section 14(4)(b), I am advised that the provisions of Article 6.2 of the directive, which deal with circumstances in which an employer can refuse to communicate information, are achieved by section 14(4) of the Bill and the first part of section 14(5). The latter part of that subsection is superfluous and the Parliamentary Counsel recommends its deletion so I propose acceptance of the amendment.
I am grateful to the Minister of State for reflecting further, as he promised he would on Committee Stage, and for adding his own name to my amendment.
Amendment agreed to.
Amendment No. 38 not moved.
Amendment No. 39 in the name of Deputy Hogan may be taken with amendment No. 40 in the name of the Minister of State, Deputy Killeen.
I move amendment No. 39:
In page 14, to delete lines 16 to 18 and substitute the following:
"(a) recourse to the internal dispute resolution procedure (if any), used by the parties concerned and provided for in any agreement under sections 8, 9, 11 or 13, has failed to resolve the dispute, and”.
This amendment is designed to ensure that all the internal mechanisms are utilised first, before one goes to the Labour Court. It helps to speed up the process and ensures that wherever a dispute is to be resolved, the internal mechanisms well established and currently in place are fully utilised before one goes to the expense of resorting to the Labour Court. That process takes time and resources and, like any other court proceedings, if matters can be kept from going there, that is helpful in reaching a decision and an earlier resolution.
I thank Deputy Hogan for his amendment. Arising from the Committee Stage debate, I sought advice from the Office of the Parliamentary Counsel on the scope of the wording of section 15(2)(a). Based on this advice, I am tabling amendment No. 40 which effectively deals with the point raised by Deputy Hogan.
Amendment, by leave, withdrawn.
I move amendment No. 40:
In page 14, line 17, to delete "usually used by the parties concerned" and substitute "in place in the employment concerned".
Amendment agreed to.
Amendments Nos. 41 and 42 are cognate and may be discussed together.
I move amendment No. 41:
In page 15, line 34, after "oath" to insert "or affirmation".
I tabled this amendment on Committee Stage for the purpose of greater clarity as I was informed that the provisions of the Interpretation Act 2005 on oaths are somewhat obscure and do not cover all cases. Subsequent to the discussions, the Minister of State kindly wrote to me and assured me that having consulted the Office of the Parliamentary Counsel, Part 1 of the Schedule to the Interpretation Act 2005 clearly provides that "oath" includes affirmation. If he will put that information on the floor of the House, I will withdraw the amendment.
I undertook on Committee Stage to check this matter. The clear advice of the Office of the Parliamentary Counsel is that these amendments are not necessary as Part 1 of the Schedule to the Interpretation Act 2005 provides that "oath", in the case of a person for the time being, being allowed by law to affirm or declare, instead of swearing, includes affirmation or declaration.
Amendment, by leave, withdrawn.
Amendment No. 42 not moved.
I move amendment No. 43:
In page 16, line 9, to delete "A person" and substitute "Subject to subsection (6), a person”.
This amendment is tabled for the purpose of making clear that subsection (6) takes priority over subsection (5). Given that the Minister of State was to reflect further on this matter, does this amendment need to be made?
I thank the Deputy for the proposed amendment. I have consulted the Office of the Parliamentary Counsel and I have been advised that subsection (6) clearly represents an exception to subsection (5) in the context of the Bill and, therefore, the amendment is not necessary.
I thank the Minister of State for the reassurance.
Amendment, by leave, withdrawn.
I move amendment No. 44:
In page 19, line 40, to delete ", unless the context otherwise requires,".
Amendment agreed to.
Amendment No. 45 not moved.
Amendment No. 47 is an alternative to amendment No. 46. The amendments may be discussed together.
I move amendment No. 46:
In page 22, line 2, to delete "twice" and substitute "four times".
This is a moot amendment. It is a proposal to increase the number of meetings per year for the forum from two to four. The requirement that the forum would have the right to meet the employer four times a year would be reasonable. The requirement to hold two meetings a year is inadequate. It would not be particularly burdensome for the scheduling to require at least four meetings.
I have considered this matter at considerable length. The difficulty is that there are so many circumstances and so many different workplaces that having four meetings a year would not achieve much since the same information would be available at all of them and there is little change. It is important to stress that the twice yearly meetings provided for are the legislative minimum. If the minima were being set out in regulation rather than legislation, I would be more disposed to looking at a higher number but this is primary legislation. It seems to me that, in circumstances where there is provision for additional meetings and this is the minimum number, two is reasonable for the minimum number across the wide range of different workplaces. There would be circumstances in where more than that would not make much sense and, in circumstances where it would, people are clearly in a position to have such meetings.
My concern is that if that if there is a legislative requirement for two meetings, that becomes the norm. Article 4.3 of the directive sets out the objective which is the delivery of information at a time that enables employee representatives to study it and consult employees. If the gap between meetings is six months, that will run counter to the expressed requirement of the directive under article 4.3 and may be a barrier to communication. The Minister of State said there is the potential for more frequent meetings but I believe that with six monthly gaps, the information may well be of little value. The capacity to consult and to disseminate the information, as envisaged in the directive, might be thwarted. I ask the Minister of State to think this out again.
I certainly would not consider it desirable that the scenario about which Deputy Howlin is concerned would occur. At the same time there are a number of provisions, including section 10(3), for the review of the standard rules and there are provisions whereby employers and employees can agree in their particular circumstances the number, form and format of the consultations. In those circumstances I would have thought the minimum number that should be set ought to be two and that would not be seen as the maximum. When one considers all the different types of workplaces, it appears reasonable to set the number at this level.
I regret I cannot persuade the Minister of State to my point of view. There is no point in taking up the time of the House in making any further attempts.
Amendment, by leave, withdrawn.
Amendment No. 47 not moved.
I move amendment No. 48:
In page 23, to delete lines 17 to 19 and substitute the following:
"(b) a trade union or excepted body that has members in the undertaking.”.
This amendment seeks to widen the definition of trade union for nomination purposes beyond those simply recognised by the employer. It links in to discussions we have had previously about the recognition of trade unions and being delimited from functioning under the Bill because they are not recognised. It is an issue I have approached from a number of angles during the course of this debate.
The Bill as it stands recognises the role of trade unions and undertakings where it is the practice of the employer to engage in collective bargaining negotiations. This goes further than what is envisaged in the directive. In undertakings where collective bargaining is not the practice, trade union members or officials who are employees of the undertaking would be free to nominate candidates in the same way as any other employee. This legislation will affect a wide variety of undertakings with different cultures and practices. The approach I have taken in the Bill is balanced and probably goes further than many thought would be possible.
Amendment, by leave, withdrawn.
I move amendment No. 49:
In page 23, line 39, before "may" to insert the following:
", where recourse to the internal dispute resolution procedure (if any) usually used by the parties concerned has failed to resolve the dispute,".
The case I have made has already been addressed by the Minister in the context of another amendment so I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."
I thank Members for their co-operation and the staff likewise.
Question put and agreed to.