Industrial Relations Bill, 1946—Committee.
Sections 1 and 2 agreed to.
I move amendment No. 1:—
In page 4, to delete the definition of the expression "trade union", lines 35 to 37, inclusive, and substitute the following definition:—"the expression ‘trade union' has the same meaning as in the Trade Union Acts, 1871 to 1942".
This amendment is related to the definition section, which provides that in this Bill:—
"the expression ‘trade union' means a trade union which is the holder of a negotiation licence granted under the Trade Union Act, 1941 (No. 22 of 1941)."
Prior to 1941 trade unions had certain rights under Trade Union Acts going back to 1871. In other words, under these Acts an organisation could be formed for certain purposes, these purposes being to conduct negotiations and to protect the interests of workers or employers, because we had trade unions of workers and of employers. Usually these unions were registered; but, in fact, the registration was merely a convenient method of giving certain advantages to a union, but it was not an essential part of the code that the union should be registered. In 1941 that was changed in this way: that a registered trade union, in order to carry on negotiations either on behalf of workers or employers, had to obtain a negotiation licence and these licences were provided in respect of organisations which paid the prescribed fee. In my view, the definition in the Bill will have the effect of limiting the number of organisations which can use the Bill. In other words, a small group of workers or a few employers in a country town will be unable to put themselves in a position to make an agreement which can be registered under this Bill, because, frankly, they will not have the finance at their disposal for the purpose. Take, for instance, a number of men working in County Galway—100 men probably—on a contract or a building scheme or a hospital or other institution. Unless these men are members of the regularly constituted trade unions which are capable of making agreements, they cannot themselves form an organisation which can get a negotiation licence, because, in fact, a substantial sum will be required, a sum which they are unlikely to have in their possession, in order to obtain a negotiation licence.
I do not want to labour that point, because I think it will be obvious to Senators and to the Minister that that will be a snag. It seems to me, however, rather invidious that one group of people should qualify to come under this Bill if they can find 2/- per head, while another group may have to find £2 per head before they can bring themselves under this Bill. In other words, 100,000 people can get a negotiation licence by depositing £10,000 in the courts. Another organisation of 500 members must get £1,000. In one case it works out at 2/- a head and in other cases £2.
I do not want to argue whether or not this definition is likely to create trouble from another angle. It should be remembered that the Supreme Court has already decided that Part III of the Trade Union Act of 1941 is repugnant to the Constitution and, there fore, it is no longer effective; it is no longer law. If somebody challenges the validity of Part II of the Act of 1941 and that also is declared to be repugnant to the Constitution, there will be no definition of the expression "trade union" in this Bill. The whole machinery of this Bill depends entirely on having a particular definition attached to the expression "trade union". If that definition disappears, and I suggest there is a possibility that it may, then what is the position under this Bill? There will be no definition. There is an old definition dating from 1871 which was continued in all the Acts prior to 1941. My suggestion is that we adopt that one.
If Senator Duffy wants to amend or repeal the Act of 1941, he cannot do it by an amendment of this Bill. I do not think he appreciates that one of the effects of his amendment would be to prevent unions with headquarters outside the country being recognised for the purpose of the Bill. I am sure that is not what he intends to achieve, but that is what he would achieve if his amendment were accepted.
I am not quite sure that that is so, and whether it would prevent any set of people forming a union for the purpose of making a valid agreement under this Bill.
The judgment of the High Court held that trade unions that were not registered in this country had no legal status here. A trade union registered outside the country can get a negotiation licence under the 1941 Act and, by maintaining the definition in the Bill, these unions are recognised. If the definition is changed as Senator Duffy suggests, these unions will not be recognised for the purposes of the Bill.
The Minister probably misunderstands me. There is nothing in any Act before 1941 which prevents the formation of an organisation. Any seven persons can validly form a trade union.
The judgment of the High Court was that a trade union with headquarters outside Ireland had no legal status here.
What is meant by legal status?
The status by which a trade union is recognised for the purpose of this Bill.
I am afraid that is not quite correct. A trade union was an illegal organisation—I suggest that is so—and the purpose of the Act was to give a legal status to a body which was not legal. I do not want to press this; if it will be difficult, I do not want to press it. I am not trying to put any barriers in the way of this Bill becoming law. I am anxious to give every assistance I can in order to have this Bill passed into law. I think it is a good thing that it should be passed into law. I merely raise this point in relation to something which I think is important. In doing that, I am not representing any interest whatever; I am speaking for myself. I have no instructions from any organisation outside this House to make these proposals. It may be that in the course of time Part II of the Trade Union Act of 1941 may be declared repugnant to the Constitution. I am not going to argue whether it is or is not unconstitutional. I assume the Minister has looked into that aspect. I am not endeavouring to put a barrier in the way.
So long as the Act of 1941 is there a trade union cannot enter into negotiations relating to rates of wages unless it has a negotiation licence. The whole scheme of this Bill envisages negotiation prior to the utilisation of the court, and, consequently, the definition of a trade union in the Bill must be related to the Act of 1941. It must be a body which has a negotiation licence under that Act. If we were to depart from the Act of 1941 and go back to the earlier Acts for the purpose of getting a definition of a trade union we would create a very strong doubt as to the position of unions with headquarters outside this country under this Bill.
Has the Minister given consideration to this point, that there is a doubt as to the constitutional validity of Part II of the Act of 1941?
I have never heard that expressed before.
Amendment, by leave, withdrawn.
Question proposed: "That Section 3 stand part of the Bill."
I notice the Minister has introduced two words into the definition of trade dispute which are not in earlier definitions. The two words are "or difference". It seems to me that would include mere personal quarrels or grumblings on the part on individual workmen. It is making wider the definition of trade dispute so as to include these things which legal decisions excluded from the early definition.
The definition is in Section 8 of the Trades Disputes Act of 1919.
It was decided that mere personal grumblings and individual differences between workmen and employers did not amount to trade disputes within the meaning of the earlier Trade Disputes Act. I raise the question as to what will be the effect of the words "or difference". It would seem to open the door to include in trade disputes matter which were not intended to be introduced.
It is desirable to have the widest possible definition of disputes. Any dispute or difference which might lead to a stoppage of work must obviously come within the scope of the Bill. It may be a dispute of a very limited character; it may take the form of an objection to the personality of the foreman or it may arise out of some matter which has no direct relation to wages or conditions of employment. But if it is a dispute which might cause a stoppage of work, the court would have power to intervene.
Question put and agreed to.
I move amendment No. 2:—
In page 4, line 39, to delete the words "of the age of fourteen years or upwards."
The section provides that a worker means any person at the age of 14 years or upwards. I am unable to find out why the age of 14 years should be mentioned in view of the fact that this Bill contemplates relations between trade unions and it is not legal for a trade union to organise any person under 16 years. I wonder why 14 years is indicated here. There may be some good reason for it, but I do not understand it.
It is the definition used in other legislation. There are statutory bars to the employment of persons under 14 years in industrial work and, consequently, an industrial dispute could not arise in relation to such persons. A person under 14 years of age may be employed part-time, subject to certain conditions, including attendance at school and similar safeguards. I think it would be undesirable to amend the definition so as to convey that there is any sanction for the employment of persons under 14.
The Minister misunderstands me. My suggestion was that the age should be 16, because it is illegal for a person under the age of 16 to be recruited into a trade union.
The Bill is not confined to disputes in which trade unions are involved. Under Part VI, any trade dispute which might lead to a stoppage of work can be investigated by the court and, as persons over 14 years of age can be employed upon industrial work at present, clearly they should not be excluded from whatever safeguard the Bill provides.
Would the Minister not agree that the clause would read better if the amendment were inserted? I suggest that the words in the amendment would be better than "any person of the age of 14 years or upwards", and so on.
Except that it is illegal to employ a person under 14 years of age.
The deletion of the words "14 years and upwards" would mean the inclusion of every worker who entered into a contract with an employer and would make the clause more comprehensive, while providing for what the Minister has in view.
I think it desirable to keep the definition of worker in the Bill in line with the definition in other similar legislation.
Surely it is not illegal in every trade to employ a person under 14 years of age, although it might be a good thing if it were.
On industrial work. A person under the age of 14 may be employed part-time on non-industrial work, which is almost entirely domestic service.
It seems to me that circumstances could arise involving a person under 14 years of age which might lead to a dispute. I am inclined to think that Senator Kyle is right. The amendment strengthens and widens the definition without taking anything from it.
I cannot contemplate the circumstances the Senator has in mind.
Would a messenger boy be deemed to be doing industrial work? I do not think he would. I can see a position arising in which a messenger boy under the age of 14 might be the cause of a dispute of very large dimensions.
He cannot be employed, except on a part-time basis and outside school hours.
Even with the safeguard of going to school, would it be deemed to be non-industrial work? In other words, could a boy under 14 years of age be legally employed as a messenger with the safeguard of school attendance? If that is deemed non-industrial work, he is legally employed.
Golf caddies employed by golf clubs.
That is not industrial work. I think it better to leave the definition as it is. I should be afraid of the consequences of changing the definition from that established in other legislation.
With regard to this definition of "worker", I should like to be clear as to whether it includes workers of both sexes?
Amendment, by leave, withdrawn.
Amendment Nos. 3 to 7, inclusive, not moved.
I move amendment No. 8:—
In page 5, before sub-section (2) to insert the following new sub-section:—
(2) The Minister may be regulation made under this sub-section declare that any class of worker mentioned in paragraphs (a) to (g) of sub-section (1) of this section is a class of worker to which this Act applies and thereupon the provisions of Part VI of this Act shall apply and have effect accordingly.
This amendment is concerned with the classes which are specifically excluded from the definition of worker. The Minister provides that the Bill shall apply to every worker, with these named exceptions, and I do not propose to ask the House to alter that, but I do ask the House to provide that the Minister shall have discretion, at some later date, to bring within the scope of the Bill any one of these classes which he considers should be brought in, but only for the purpose of Part VI. In other words, there is no proposal to interfere with the arrangement made in Section 4, so far as it relates to the recording of standard rate orders or bonus orders, or to the registration of employment agreements. The proposal is that the Minister may, if he thinks fit, apply Part VI to any of these employments, so that, in the event of a strike taking place, or of a threatened strike, power will be vested in the labour court to intervene so far as it is permissible for the court to intervene in such disputes.
The House will recall that in most cases—in fact, in every case—in which responsible organisations are involved, there is no power vested in the court to intervene, unless a dispute becomes inevitable. Its main function so far as disputes are concerned will mainly be in respect of strikes which occur in unorganised trades or industries, or in respect of a lightning strike which takes place without the authority of the union. It is desirable that a court of this kind should have power to intervene in such disputes. I cannot see any reason why a court set up by this State should be told that it must not interfere in an effort to bring about a settlement of, let us say, the teachers' strike, or of a strike of employees of a local authority. I cannot be convinced that there is some valid reason why a body of this kind established by statute, given a good deal of authority and having conferred upon it a certain status, the status which the title "court" gives, should be told that it must stand aside once the dispute involves teachers, civil servants or employees of local authorities. I am not asking that the machinery be applied immediately; I merely ask that, when passing this Bill, we include a provision which will give the Minister power to bring these classes within the Bill at his discretion.
We have often heard of power being given a Minister to make Orders. Here we are asked to enable the Minister to make an Order in direct conflict with the terms of the Bill. I think that is an absurdity. I certainly object to giving any Minister power to include later bodies excepted by the Act when passed. If my friend is serious about the amendment, surely this is not the time to move it. The proposal is that the Minister shall make such Order declaring that certain classes of workers are workers "to which the Act applies". In other words, the whole Act would apply to them. The words referring to Part VI would then be unnecessary.
I think it would be a mistake to adopt an amendment which might be interpreted as conveying an intention to bring under Part VI of the Bill state employees or employees of local authorities. There is no such intention. I want to make that as clear as words can make it. In the Government's view, this court, which is being constituted for a different purpose, would be an unsuitable tribunal to intervene in disputes between the State and its employees or between local authorities and their employees. If there is to be similar machinery established to deal with State and local government employees, or any form of conciliation or arbitration for them, it will have to be provided in a separate measure and will operate through a separate instrument.
I have a certain amount of sympathy with what Senator Duffy is aiming at but I ask him not to press the amendment. In my view we are setting up an experimental court, and it is extremely important that it should succeed. I do not know whether the Minister is or is not right in forming a separate tribunal, but I do not want this one to be saddled with that kind of negotiations in the first year, because I believe it would possibly lead to a failure in what I call the experimental stage, when the court would be trying to establish itself or to set a precedent which will become established. For that reason, I am not sorry that some of the other thorny and extremely difficult questions are excluded from it. That does not mean that the time may not come when they could be dealt with by this court. It would be foolish to press the amendment at this stage.
Amendment, by leave, withdrawn.
Question proposed: "That Section 4 stand part of the Bill".
I find one difficulty in this section to which I desire to draw the Minister's attention. In line 44 these words occur: "... or a contract personally to execute any work or labour...". That would include a contract with a painter to paint a picture or a carpenter to make a chair. It seems to be fairly well established that there is a legal difference between a contract of service and a contract for services. In other words, you would probably include under this section an arrangement with an independent contractor. I am not certain that these words are necessary. Perhaps the Minister would look into it before the Report Stage to see whether they do not extend the section further than is meant. I am not pressing the matter, but desire to call attention to the wording.
On that question, there is the danger that the words might include something that it was not intended to include. For example, under the Solicitors Act, an apprentice to a solicitor can get no pay of any kind. I hope such a person would not come within the definition here. If the Minister thinks he would, I ask him to put in a clause excluding such persons.
I would not agree. I do not see why they should be excluded. Not all trade disputes relate to rates of pay. If a solicitor's apprentice was overworked or had some other grievance or went on strike, I am not going to deprive him of that right. If having become involved he wished to avail of the court, I do not see why he should not be allowed to avail of it.
But his master cannot appear before the court.
As an employer, if he is summoned, he can. We are not dealing with matters such as would arise under the workmen's compensation code. We are dealing with all forms of employment under contract which may lead to trade disputes. Consequently, the definition must be as wide as is necessary to ensure that our purpose is fully achieved. I will examine the point that has been raised but at first glance I can see certain circumstances in which a trade dispute might arise in connection with a person employed under a contract to execute a certain work personally.
That is why I want some other words. I do not think this is ideal wording. I found it difficult to get suitable alternative wording.
Question put and agreed to.
Sections 5 and 6 agreed to.
I move amendment No. 9:—
At the end of the section in page 5 to insert the following new sub-section:—
() Notwithstanding anything contained in Section 10 of the Petty Sessions (Ireland) Act, 1851, a prosecution for an offence under Section 45, Section 48 or sub-section (2) of Section 52 of this Act may be brought at any time within whichever of the following periods later expires, that is to say:—
(a) three months from the date on which evidence sufficient in the opinion of the Minister to justify a prosecution for the offence comes to his knowledge, or
(b) twelve months after the commission of the offence,
and a certificate under the official seal of the Minister as to the date on which such evidence comes to his knowledge shall be conclusive evidence thereof.
The amendment proposes to extend the time within which certain prosecutions may be brought by way of summary proceedings. The amendment is exactly in the same form as an amendment which was accepted by the Minister some months ago when he was piloting the Children's Allowances Bill. On that occasion, there was some question as to what would be a reasonable time limit within which certain types of proceedings should be brought. After some discussion, this form was accepted as reasonable. The amendment does not propose to extend the time within which proceedings may be brought in all cases. It proposes only to extend the time—in fact it is questionable whether it is an extension at all—in respect to certain prosecutions. Section 45 of the Bill relates to prosecutions for failure to pay the rates fixed by the successors of the late trade boards. I think it is reasonable to imagine, from past experience, that information may not reach an inspector —may not reach the Minister—in all cases within 12 months.
There is no doubt that under the Petty Sessions Act proceedings can be brought in respect to wages at any time within 12 months after the offence is committed, so that 12 months here is not an extension. The real extension is the proposal that there should be three months after the matter comes to the knowledge of the Minister; in other words, after the time at which he is satisfied there is evidence under the Bill to go on with that prosecution. There is experience in the past of workers employed in certain firms, not being paid the old trade board rate so long as their employment lasted. Personally, I know of one case where the deficiency was continued for a period of five years. The matter came to light some time after certain workers had left, and there was then the question of going back over all the people who had grievances, to size up what amounts were due and take proceedings for recovery. There was one case where £178 was recovered in a certain tailoring establishment in the City of Dublin. What I am anxious about is that, if information upon which to ground a prosecution does not come to the knowledge of the inspector within the time prescribed by the Petty Sessions Act, it should be competent for the inspector to bring proceedings at any time within three months after information upon which to ground a prosecution reaches the Minister, and he is satisfied that there is evidence available.
I hardly think that this amendment is necessary from the point of view of the protection of the workers. The main offence which would arise under the sections quoted in the amendment is the non-payment of the statutory rate of wages under Part IV of the Act. In practice, what happens is: the employer is found not to be paying the statutory rates of wages. He may not have paid it for a considerable time but he is discovered, as on a particular date, not to be paying and proceedings are instituted against him. The worker, or an inspector acting on behalf of the worker, can proceed in a civil court for the recovery of wages underpaid and such proceedings can go back for seven years.
The period under statute is 20 years.
Six years is the period under the Common Law Procedure Acts for the recovery of an ordinary debt.
If an employer was prosecuted under Section 45, the court could make an order for payment of wages due covering the previous three years. It seems to me that there is no necessity for this provision. I am assuming that the Petty (Ireland) Act, 1851, is still regarded as desirable legislation—that it is considered desirable that this statutory limitation on summary proceedings should remain. There should be no departure from that principle unless there are obvious grounds for it. It does not appear that there are obvious grounds for it in this case. The provision is the same as under the Trade Boards Acts and no difficulty has arisen under those Acts by reason of the statutory limitation. The workers concerned have been able to recover the wages underpaid by civil proceedings. I have had the matter examined and I can find no reason why there should be an extension of the time.
The Minister referred to Section 45. The amendment relates also to Section 48 and sub-section (2) of Section 52. Section 48 deals with the illegal acceptance of premiums from apprentices. It is conceivable that, in that case, information on which to base a prosecution might not be available within the period of six months. An apprentice is bound, say, for four years. A fee is paid illegally in the first six months which fee may amount to from £10 to £50. I am not speaking of fees paid in accordance with the provisions of the Act but of fees illegally demanded and paid. Information concerning that offence will very rarely become available until the period of apprenticeship will have expired and the person concerned will have left his employment. It would then be late to proceed under the Petty Sessions Act.
Does the Senator suggest that there should be no limit at all?
I suggest that it should be possible to bring the prosecution within three months after the offence has come to notice.
That might be many years after the offence.
The principle has been inserted in other Bills. Under the Children's Allowances Act, the Minister can proceed against the unfortunate fellow down the country who probably inadvertently——
I am not disputing that there are cases where the provisions of the Petty Sessions Act, 1851, proved an embarrassment. In this case, under Part IV of the Bill, we are merely taking an existing code which has worked reasonably well and transferring it into this Bill, with certain changes which do not affect this particular part of the Bill. I have been unable to ascertain that there has been any case in which the six months' statutory provision has proved an embarrassment under corresponding sections of the Trade Boards Acts.
I agree with the Minister. We have to be careful before changing this six months' limitation. If there were any question of the legal right to recover wages or secure repayment of a premium, my sympathy would be entirely with Senator Duffy but I gather that the time limit is very considerable. As regards the premium, the 12 months provided for in Senator Duffy's amendment would not necessarily meet the requirements. I can see a very great distinction between an offence and an error. There are, probably, employers who would deliberately try to get away with underpayment. It would be extremely difficult to prove either that that was deliberate or that it was not, after a period of 12 months. The reason I am against this very long period in which a prosecution can take place is that I have seen in other cases how difficult it is to make a proper defence after a long period. You could have an offence under this Act of a character with which none of us would have the slightest sympathy. But you might also have an offence which would arise from inadvertence on the part of the staff dealing with wages and salaries in a large establishment. I am strongly of opinion that, so far as an offence is concerned, six months is an adequate period so long as recovery can be effected over a longer period.
I cannot understand Senator Douglas' argument. Some months ago he supported a proposal which was written into the Children's Allowances Bill authorising a departure from the time limits in the Petty Sessions Act so as to enable the Minister to take proceedings against a person who wrongfully obtained payment of 2/6 a week within a period of 12 months. The wording of this amendment is lifted from the amendment inserted in this House in the Children's Allowances Bill. The prosecutions in that case will be taken mainly against poor people who have few opportunities of knowing the law. In the case before us the proceedings will be taken against employers who wrongfully accepted premiums from apprentices. I cannot understand the alacrity with which Senator Douglas voted for one amendment and his opposition to this amendment. I accept his view that he has no sympathy with a person who illegally pays rates lower than the legal rate or accepts sums of money to which he is not entitled. I want that view expressed in the Bill. I want to see an amendment inserted to enable the Minister to take proceedings when information of that kind comes to his notice, even though the period of six months prescribed by the Petty Sessions Act has expired. I think it is only reasonable. I would expect that employers who are anxious that the law should be administered impartially would be as keen as I am to see that the amendment is inserted in the Bill.
I oppose this amendment. It is always much easier to bring a stale accusation against a defendant. If a person waits for a considerable time before he makes a charge, the odds are that the evidence to dispute that charge is not available. That is why the law is keen that criminal offences should be prosecuted as soon as possible and I have always felt very strongly that the prosecution of offences which are stale in time is likely to work an injustice. Therefore, on general principles, in this Bill, and indeed in every other Act, I would oppose the extension of the time laid down by the Petty Sessions Act.
I would also oppose this amendment for the reasons given by Senator Kingsmill Moore. It is a wrong practice to extend the provisions of Section 10 of the Petty Sessions (Ireland) Act, 1851, in specific cases and not to extend them generally. Therefore, the sooner that sections in the form of the amendment moved by Senator Duffy are deleted from existing legislation the better and all prosecutions placed on the same level, namely, that when an offence is to be prosecuted summarily the prosecution must take place within six months of the date of the commission of the offence. It is invidious to extend that time. When a section in this form was before this House in connection with another measure, I opposed the section for that reason. Accordingly, I oppose the amendment now moved by Senator Duffy.
I am not anxious for invidious distinctions in Acts of the Oireachtas but I draw attention to the fact that within the past five or six months we have inserted provisions modifying the section in the Petty Sessions Act in various Bills. We did that in the case of the Children's Allowances Bill and the Forestry Bill. When the Minister came to this House with the Children's Allowances Bill he proposed that a prosecution could be taken at any time within two years after the date upon which information on which to base a prosecution reached him and I think I put down an amendment to resist that and as a result of the amendment which I put down, and withdrew, the Minister brought in a compromise proposal which is precisely in the same wording as the amendment now before the House. A somewhat similar proposal was inserted in the Forestry Bill and I think in one or two others.
The argument completely fails to impress me when I am told about the unwisdom of amending the Petty Sessions Act when it is a case of prosecuting an employer who has resources to enable him to know the law and to obey the law when there is inserted a similar proposal in another Bill which will be used and can only be used against the poor people who very often have no means of knowing what the law is or whether they are committing an offence or not.
Amendment put and declared negatived.
Section 7 agreed to.
I move amendment No. 10:—
At the end of the section, page 5, to insert the following new sub-section:—
() Notwithstanding the repeals effected by this section the provisions of the following enactments, that is to say:—
(a) The Conciliation Act, 1896, and
(b) The Industrial Courts Act, 1919,
shall in relation to every employment mentioned in sub-section (1) of Section 4 of this Act continue to apply and have effect to the extent they would have applied if this Act had not been passed.
In this Bill there is provision to repeal a number of statutes set out in the Schedule. These statutes include inter alia the Trade Boards Act, 1909, and two other Acts, in particular, which I think might be retained—the Conciliation Act, 1896, and the Industrial Courts Act, 1919. Under Section 4 of the Bill, a number of classes of employment are excluded from the provisions of the Bill. I am endeavouring by this amendment to achieve that, so far as the excluded classes of employment are concerned, the provisions of the Conciliation Act and the Industrial Court Act would be retained. It is true that the Conciliation Act has not been used very much either in Great Britain or in this country. The Industrial Courts Act has been used, not so much in this country as in Great Britain, but it has been used on a number of occasions. I remember an industrial court being established to deal with the Dublin tramway strike in 1929. There was a court established to deal with the dispute in connection with the sugar company at Thurles. I remember half-a-dozen and I think there were others. I was personally associated with at least five cases in which a tribunal was established under the Industrial Courts Act to inquire into certain disputes. As far as I can recall, the effect of the inquiry in each case was to bring about a settlement of the dispute or to avert a threatened dispute.
In the case of the Dublin tramway strike in 1929 the entire transport of the city was dislocated. All sections of the tramway employees were on strike and the Minister's predecessor established a court consisting of three persons. An inquiry was held in public and an award was issued by the court which was accepted by the parties. I can see a similar situation arising, let us say, in the case of the Dublin Corporation. Let us assume that there is a strike or a threatened strike amongst the employees of the Dublin Corporation. That would be a serious situation. We had experience of it some years ago. In a case of that kind I could imagine the Minister availing of the Industrial Courts Act to establish a tribunal contemplated under Part II of that Act so as to inform himself and the public as to the merits of the dispute. I do not think the Minister should deprive himself of the provisions of the Industrial Courts Act, 1919, in a matter of that kind. There is nothing in the Industrial Courts Act which is in conflict with this Bill. This Bill can become law and can operate; the labour court can be applied to the class of employment to which the Bill applies and yet leave intact the provisions of the 1919 Act, which would be available should the Minister decide to use them in relation to employments to which the labour court would not apply.
There are two important provisions in the 1919 Act, which falls into two separate compartments. In Part I, there is the industrial court which, as far as I am aware, has not been used at all. Part II has been used frequently for the purpose of an inquiry, which usually resolves itself into a public investigation of all the facts. The public are informed by newspaper reports as to all the points at issue and the arguments on both sides. The Minister is fortified with that information and with the conclusions which are submitted to him by the tribunal, in making any proposals or advances he thinks fit. In future, the tribunal would be concerned only with disputes relating to these employments which are outside the scope of this Bill. Unless there is some very important reason for repealing the two Acts mentioned in the amendment, I think the Minister should continue them.
As Senator Duffy said, the Conciliation Act of 1896 is more or less a dead letter. Part I of the industrial Courts Act of 1919 is also dead— at any rate, it has never been operated here. Part II has been availed of, but never—at least, within my recollection —in relation to types of employment excluded under Section 4 of this Bill, that is to say, State servants and servants of local authorities. I do not think it is desirable that we should retain that Act at all. Perhaps it is not fully appreciated that there is nothing in the Bill which prevents the court arranging conciliation conferences, in connection with any dispute whether the persons concerned are excluded by the provisions of Section 4 or not, or investigating any dispute with the consent of all the parties concerned.
As the only types of employment excluded here are those with which Minister are concerned directly— either employees of the Government itself or employees of local authorities —it is quite obvious that the circumstances under which assent would be given generally to the investigation of a dispute by this court would be such as would justify the Minister for Industry and Commerce exercising his powers under Part II of the Industrial Courts Act to establish an industrial court. If there were objection to having this court investigate any dispute, then presumably there would be similar objection to the appointment of an industrial court under the Industrial Courts Act and such court would not be appointed.
However, I want to advance my argument against this amendment on the ground that this Bill is not designed to cover and, in my view, should not be extended to cover employment in the service of the State or of public authorities. There are different principles that apply in relation to disputes arising in connection with those employments from those which apply in disputes arising in other employments. If there is to be a tribunal to investigate these disputes, it must be constituted on a different basis from the court proposed under this Bill. I cannot conceive circumstances under which the Minister for Finance would regard a court constituted as proposed here as a suitable body to adjudicate between the claims of civil servants and the interests of the taxpayers. The same principles that apply in the case of servants of the State apply in the case of servants of local authorities.
I am not to be taken as expressing the view that there is objection in principle to the application of some similar machinery to those employments. My main objection to the application of this machinery is that it was not designed for that purpose but for a different purpose and it is unsuitable for the particular purpose which Senator Duffy has in mind. The House is aware that discussions are proceeding between the Minister for Finance and the Civil Service organisation concerning the application of the principle of arbitration to their conditions of employment. If those discussions lead to legislation, the House will have an opportunity of expressing its views on the adequacy or the suitability of that legislation, and I suggest that the matter should be allowed to stand until then. This Bill is designed to deal with disputes affecting employment other than employment in the service of the State or of local authorities. Any efforts made to extend this measure to cover those employments are, I think, unwise.
That is not the purpose of this amendment.
It can be that purpose and no other.
It is for the purpose of preserving the machinery.
It is for the purpose of preserving for State servants and servants of local authorities machinery that has never been used in relation to them and is unlikely ever to be so used. If circumstances did arise in which the Minister for Industry and Commerce would be prepared to appoint an industrial court under the 1919 Act, I think there would be little difficulty in securing the consent of other Ministers to having this tribunal conduct the inquiry. This tribunal, in such circumstances, would not be debarred from conducting the inquiry. However, assuming that this amendment were passed, it is extremely unlikely that the Industrial Courts Act would be used in relation to a dispute affecting public servants; and assuming it is not passed, it is extremely unlikely that this court would be used in relation to such a dispute.
As I understand it, the court provided for in this Bill will not resemble the court which was established on former occasions under the Industrial Courts Act.
It will not be very much different.
In all the cases I am aware of the Minister appointed a judge.
I was associated with at least five or six of those inquiries, Judge Davitt presided at at least three or four and Mr. Justice Black in other cases.
I can remember a number of occasions where a judge was not appointed.
If this amendment is passed, it will apply to every employment covered by this Bill, as it applies to every employment mentioned in sub-section (1) of Section 4.
It applies to no one unless the Minister applies it.
Part I of the 1919 Act has never been repealed and it provides for a permanent court. This section applies to either a contract of employment or apprenticeship. The Senator refers to excluded employments. If this amendment is carried, it will have those Acts applied to every employment covered by this Bill. I do not know if that is the Senator's intention.
I pointed out that the 1919 Act is inoperative unless it is applied by the Minister.
Is the Industrial Courts Act of 1919 supposed to apply as between the State and its officials?
Or does it apply to all those mentioned? Is it the intention to amend that Act by this Bill we are now discussing; as, if it is, there is a great deal of fault to be found with adapting certain provisions of a Bill that has been passed—yet to amend a Bill that has been passed in that way seems to be an extraordinary procedure and it would be hard to follow any Bill if that method were adopted.
I rather gather that the meaning of Senator Duffy's amendment, though it might be necessary to change the wording of it, is this: that he wishes that the Conciliation Act of 1896 and the Industrial Courts Act of 1919 should continue to apply to the persons who are excluded from the scope of Section 4, sub-section (1). I know that the amendment does not cover that verbally, but that is a matter that could be set right between this and the Report Stage. I am rather anxious to see that no possible machinery for resolving disputes is abolished. We all know that the grave of a great conflict is nearly always a great compromise. It has been impressed upon all of us, in connection with conflicts which have gone on, which are going on and which are likely to go on, that what is really needed is that some kind of an opportunity should be afforded by a conciliation tribunal, an arbitration tribunal or by some tribunal for digging that grave in which to bury the conflict, and on which to erect the headstone of the great compromise. As I say, I am a little bit anxious when I find that any machinery which is in existence, even though its use would be somewhat improbable or would, in some respects, be not very suitable, is being abolished. I do not know whether or not I understood the Minister aright when he was speaking. Did he suggest that he was going to introduce some new measure to provide for some form of conciliation board or arbitration tribunal for the classes of persons excluded from Section 4, sub-section (1)?
What I said was that discussions are proceeding between the Minister for Finance and Civil Service organisations on that subject.
But there are other organisations?
Yes. There are the employees of local authorities.
It seems to me that, unless the Minister anticipates that some machinery would be set up for resolving disputes in the case of all the excluded classes, he ought not to take away any machinery which exists.
The only machinery that exists cannot be utilised except by a decision of the Minister for Industry and Commerce. The Conciliation Act is a dead letter. Part I of the Industrial Courts Act has never been operated. That part of the Act provides for a permanent industrial court and has never been operated, nor is it proposed to operate it. In fact, it is clearly an anomaly which must be removed. Part II of the Industrial Courts Act provides for the appointment of an industrial court to investigate one particular dispute referred to it. That part has been used on about half a dozen occasions in the last ten or 15 years. It has never been used in that period in the case of disputes affecting the employment of persons who are excluded from this Bill by the provisions of Section 4. It has been used only in relation to disputes which will come under the court to be established by this Bill, and consequently is no longer required in relation to these disputes.
Senator Duffy's suggestion is that we should retain the power to establish an industrial court to investigate disputes concerning civil servants or the officers of local authorities. My answer to that is that if the circumstances were such that the Minister for Industry and Commerce would be prepared to establish an industrial court, then the same circumstances will ensure agreement for the utilisation of this court for the purpose of inquiring into the circumstances of the dispute. If there is agreement, then this court may be utilised. Therefore, I say it is not necessary to retain Part II of the Industrial Courts Act of 1919. I want to make it clear, however, that I would regard it as extremely unlikely that it any time, assuming that the Industrial Courts Act of 1919 were retained, the Minister for Industry and Commerce would establish an industrial court to investigate that type of dispute, one affecting civil servants or the officers of local authorities. It must also be regarded as unlikely that the labour court to be established by this Bill would be used in relation to these disputes. I have expressed the view that, if there is to be a tribunal of similar character to handle disputes affecting civil servants or the employees of local authorities, it should be set up under a separate Act, and on a somewhat different basis to the court which it is proposed to set up under this Bill. Whether legislation will follow this year from the discussions which are proceeding between the Minister for Finance and the Civil Service organisations I cannot forecast, but clearly, the introduction of such legislation would give Senators an ample opportunity of expressing their views upon its adequacy and on the classes of persons who should come within its scope.
Amendment, by leave, withdrawn.
Sections 8 and 9 agreed to.
Before amendment No. 11, in the name of Senator Foran, is taken, might I suggest that a number of the amendments to this section should be discussed together? They divide themselves roughly into three classes. We have first Senator Foran's amendment which proposes to change the character of the court and the numbers composing it; secondly, we have the amendments in my name and in the name of Senator Summerfield and Senator Kingsmill Moore which deal with the standing of the chairman; and thirdly we have amendments which deal with the conditions under which the chairman would hold office. I think it would save a good deal of time if these three groups of amendments were discussed together.
Is the House agreed that amendments Nos. 11, 15, 17 and 26 should be debated together? Senators may remember that there was some difficulty on a former occasion when amendments were grouped and discussed together.
I suggest that the amendments should be taken as they appear on the Order Paper. Otherwise, a great deal of confusion will, in my opinion, be created. I also think that the method which I suggest would save time.
Very well. The amendments will be taken separately.
I move amendment No. 11:—
In sub-section (2), line 49, to delete the word "four" and substitute therefor the word "two"; and in line 50 and in line 51, to delete the word "two" and substitute in each place the word "one".
Under the Bill, as originally drafted, the court was to consist of three members. I do not know where the pressure or the influence came from, but the Minister was induced to alter the number to five. A great number of people in the labour movement are very concerned about this change. In my opinion it is not going to make the court any better than it would be if it consisted of three members. In fact, the change may have the effect of preventing the court from functioning so far as certain sections of the labour movement are concerned. The Minister has been swayed by the argument that it might be desirable for a member of the court to have a colleague to consult. I cannot see any sound reason whatever in that argument. There seems to be some reason, other than the one advanced by the Minister, for the change which has been made. The composition of the court will have a very important and influential effect on the people who are going to use it, and if certain action is taken in connection with the setting up of a court of five that might have this effect—that certain sections would do their business outside the court—in other words, boycott it. Now, everyone desires that this court should, to the fullest extent, fulfil the purpose for which it is to be set up.
The desire of the people with whom I am in close touch, at any rate, is that this court should be a success and that it should end to a large extent industrial turmoil in the country. They believe that a court of three persons is adequate and there is no reason that they can see, no reason that has been advanced up to now, for changing the number to five. The amendment has been put down in order to give the Minister and the House an opportunity of reconsidering their attitude. If there was good reason in the Minister's mind for a court of three persons, as proposed in the original draft of the Bill, no argument has been advanced up to now to show why that number should be increased to five. In my opinion, a court of three persons is adequate and will give general satisfaction. There is no reason whatever for increasing the number to five.
I should like to support the contention of Senator Foran. We, on the employers' side, or at least a very considerable number of employers, feel that the Minister's first thoughts on this matter were best. We have the experience gained in the operation of the Wages Tribunal. I should like in passing to avail myself of this brief opportunity to testify to the worth of these tribunals in bringing about a better understanding between these important elements in production—capital and labour. We found that a court of three in such tribunals operated splendidly. From my own experience, I shudder to think what might have happened if the membership of these tribunals had consisted of five instead of three persons. I have not been at all impressed by the arguments used in the other House as to the merits of a court of five rather than one of three. If we have the right men in this suggested labour court— and unless we have the right men the court is going to be of no use to the community; it will be a failure—three men will more easily make up their minds on the matters brought before them than will five. If you increase the membership of the court you allow more play for the human element—the clash of one man's opinions against that of another man—but if each member of the court feels that he has a responsibility of making a decision on his own on a particular point, then I feel you are more likely to get a decision in consonance with equity and justice. I hope the Minister will revert to the proposal in the original draft of the Bill and have a court consisting of three members only.
As the House is aware I endeavoured to secure that the details of this measure would be settled by agreement with organisations representative of trade unions of workers and trade unions of employers. To a very great extent, agreement was forthcoming but because of the division in the trade union movement it was not possible to get agreement on this particular aspect of the Bill. The Bill as introduced contained a provision that the court should consist of three members. I am sure Senator Summerfield appreciates why a question arose at once within the ranks of the trade union movement concerning the nomination of the one workers' member of the court and it was urged that circumstances required that there should be a court of five members, including two workers' members. As agreement on the Bill seemed possible on that basis, the suggestion of a larger court was made in the Dáil and the inquiries I pursued seemed to indicate that it would be generally acceptable. Subsequently, however, there were second thoughts and objection was advanced to the court of five members. Now, I am anxious that we should avoid reaching a decision upon questions which must inevitably arise when the court is being constituted, until some exploratory work has taken place. If we decide to revert to a court of three members, we are making a decision which may make that exploratory work unnecessary and certainly will make it unprofitable.
Apart altogether from that particular objection to altering the provisions of the Bill at this stage there are I think substantial advantages in having the court constituted as proposed here. I do not know what weight is to be attached to the argument that a workers' member of a court of this kind or an employers' member, dealing with a case of particular intricacy, might like to feel that in his decision he had the support of a person of like mind to himself. Certainly the fact that such support was forthcoming would, no doubt, enable such a member arrive at his decision more confidently. There is, however, another consideration which is important from my point of view. One of the questions that promised at one stage to create considerable difficulty was the question of the method of dealing with a rush of business to this court, such as was contemplated might occur in the initial stages of its existence. Various proposals were put forward for the constitution of a second court if circumstances required it. I had objections to that proposal—practical objections and theoretical objections.
The device of having a court of five members made possible the subsequent provisions in the Bill for the division of that court into two parts, each part consisting of three members, in circumstances where the expeditious handling of a rush of business was considered desirable by the chairman. An alteration in the size of the court now will involve reconsideration of the whole of that part of the Bill and either a decision to cease the effort to find some means of dealing with a particularly heavy rush of business or the devising of some new method of handling it. I think myself that the arguments are in favour of leaving the Bill as it is. I feel that if there had not been division within the trade union movement, we would not have encountered any difficulty on this particular question. I should hope that some means will be found by which any difficulty that may arise will be avoided by agreement but I feel it would be a bad thing to preclude that possibility at this stage by taking a decision now which would in effect mean that only one Congress of Trade Unions could have a nominee on the court.
May I put one further reason why I think the court should be constituted of five members? Experience of tribunals which attempt to conciliate shows that where you have representatives on the one hand of employers and on the other hand of workers, and where there is only one of them on each side, such representative is always afraid to give away a point even though his reason or his reasonableness convinces him that it should be given away. He is afraid of being accused of being weak or of being accused of being corrupt. If he can consult with a colleague who also agrees that the point should be given away, it is very much easier for him to do it. It is much easier to arrive at a compromise where there are two people representing each side, because they are less likely to be accused or to be afraid of being accused of acting from motives other than motives inspired by a pure sense of justice and a desire to arrive at the best compromise.
I hope that Senator Foran will not at this stage press his series of amendments. I say that because I have a very large measure of agreement with the point of view he has expressed. But having regard to discussions which have taken place, the turn which this Bill has taken, and the fact that it is to a considerable extent experimental, I think it would be a mistake for us, even if we had a majority here, to make any change. In saying that, I should like to be allowed this opportunity of giving the reasons why I am not in complete sympathy with the way in which this court is being set up, because on that hangs my objection to having a larger court. If the idea is fundamental that the employers' members and labour members are to be representatives, then there is probably a great deal in the case made by Senator Kingsmill Moore. But, if they are to be representatives, I think it will never be a labour court such as I had hoped it might become. Personally, I do not think that it will be a satisfactory permanent institution if it is to be regarded as something like the tribunals set up under emergency legislation. To my mind, it has to be something much more important, bigger, and much more permanent.
If I had my way, I would rather see a court of three. I would prefer that two of these members should be chosen by the Minister for the day, one chosen because he had experience in the labour movement either as a trade unionist leader or in some other way and, when chosen, to my mind he should be asked to sever all connection with the movement and he should be pensioned at the end of his period, even at the risk, if he proved unsuitable, that we would have one or two additional pensioners on our books. In the same way, I should like to see the so-called employers' representative chosen because he was a man who was known to have experience in connection with the functions of an employer and who also would be asked to give up his interests in trade or industry and who would be pensionable. It seems to me that these men would then clearly cease to be representatives. They would be valuable because they would contribute to the court a point of view gained from experience and not because they continued as representatives.
If they are to be representatives, I think there is probably something in the case that two labour and two employers' representatives are more likely to agree to a compromise than one. But that is all on the basis that the man has to answer back either to his employer's trade union or his worker's trade union, which I think is fundamentally bad. Again, on the assumption, which I am afraid is one of the weaknesses of the Bill, that, although technically he may not have to answer to them, while he is serving on the court he is in the position that he may have to turn to the very people who have nominated him for his future employment after he ceases to be a member of the court, or, even as it looks, if he is not to be a whole-time member, he may even have to look to that class of person for part-time remuneration, that is a thing which, to my mind, is bad. I have great sympathy with the Minister. I believe that he has absolutely and genuinely tried to get away out of the difficulty. I am only arguing this matter because I have given some thought to this and because I believe that in time we will find that is the best way.
I hope that no class, not using the word in any objectionable sense, will be ultra-critical of this court to commence with; that they will recognise that, of necessity, it has the limitations which are due to circumstances which have been rather unfortunate on the whole. As this is the Minister's baby and as he has given a lot of time to try to make it work in this way, although I am not in any sense a political supporter of his I would be inclined to leave it to him and not at this stage further to interfere.
I am glad that Senator Douglas has spoken before me because, in the main, I find myself in agreement with what he said. Personally, I have grave doubts as to what will happen in regard to this court. I doubt whether the procedure in the Bill will get the kind of court that will convince the public that it is a competent body dealing impartially and intelligibly with the problems that will confront it, perhaps within the next two or three years. When the question of labour courts was being examined by the Vocational Commission, of which I was a member, although I want to assure the Minister that I did not sign the report, the matter of preparing some data was handed over to me and I made very wide inquiries as to how these organisations worked elsewhere. What I found usually was that in the European countries the labour courts consist of a permanent chairman, who may be one of a panel of independent persons selected by the Minister, and other people who act mostly as assessors, coming from the trade union movement on the one hand or from the employers' organisation on the other. These courts consist almost exclusively of persons who are unpaid and it has been my experience that, where you recruit a body of people of this kind and do not pay them, you get competent people, and that, when you commence to pay them, the job seekers are on the door-step. That has been my experience and, if the Minister looks around, I think he will probably find that that is also the experience here. The result is that these courts function smoothly, and I may add, in view of amendments which arise later, that they have very much wider functions than are given to the court here, because as a matter of fact, claims under the Workmen's Compensation Act and under the social insurance legislation are adjudicated upon by a labour court and not by the more expensive tribunals which are known as courts of law.
I differ at one point from Senator Douglas in regard to the number of the court. I am indifferent whether it is to be three, five or seven. I think, however, that the practice that has obtained elsewhere might guide us here to some extent. In all the European countries it is the practice to divide the court into at least two divisions, one division dealing with industrial employment and one mainly with commercial employment. That has been the usual practice in European countries. The chairman is a member taken from a panel of two, three or five, as the case may be. Very frequently, of course, he is a judge, an independent person. Usually, when a question arises involving employment in commercial establishments, the court tends to have as its assessors employers and workers who are acquainted with commercial practices. Where it is a question of industrial employment, the assessors on both sides, the employers and the workers, are familiar with the industrial processes. Not alone that, they are also people who are familiar with the actual process being investigated. I do not know whether the Minister is familiar with the kind of agreement that is made in the railway service. The Railway Wages Board has had the function of interpreting agreements made in 1919, 1920 and 1922. Looking at the outline of these proposals to-day, I find that the book in which these agreements are set out contains 240 pages. There is a memorandum of agreement in a form which would not be accepted under this Bill for registration by the labour court, but that is another story. Then you come on to schedules, in which is set out the class of employment to which the agreement relates. Then you have amendments to the agreement, and these are drawn up in a most peculiar fashion. In many cases they do not interfere with the drafting of the original document. In one case it is set out that a driver, before leaving his place of residence, is allowed 1½d. an hour, and if he is away from home for a certain time the allowance is 3/6. That is altered to 5/-. That is all that is done when the agreement is altered by the Railway Wages Board, which is in many respects the equivalent of this court. It is composed in much the same way, although it is a larger body. It may be that that body consisted of 17 persons because of the considerable number of railway concerns which existed when the Board was set up in 1924.
The difficulty about this court will not be merely the problem the Minister has referred to of getting two organisations to accept the court and work it, each of them being instrumental in having its own nominee appointed. The real difficulty the Minister will have will be to get from either organisation the type of person who will act as Senator Douglas suggested, who will dissociate himself actively from the interests responsible for his appointment. Unless the person concerned is a negotiator, or rather an advocate, I think you will have great difficulty with the court. From the way this matter has been discussed, it seems to me that the members of the court, other than the chairman, are being regarded as advocates. That is a wrong approach. I think the advocates should come from the employers' organisations and the workers' organisations and make their case. The court should consist, therefore, of people able to weigh up the submissions made to them and to make an award or recommendations of a desirable kind.
There is probably a misunderstanding as to what the functions of the court are likely to be. As I understand it, even when making an award the court is bound to have regard not merely to its justice, but as to how far it is likely to be accepted by the parties concerned. It is necessary to have regard to the extent to which its recommendation or award will be accepted by the parties. In other words, do not make the position worse than it is. If there is a strike threatened, try to settle it, but do not try to impose on the parties conditions which they will not accept and which will only accentuate the difference between them. I support the Minister's view that, in the circumstances, we are bound to retain the number at five, but whether it will be a permanent or satisfactory solution is a matter on which I have some doubt.
Amendment put and negatived.
I move amendment No. 12:—
To delete sub-section (3) and substitute instead a new sub-section (3) as follows:—
(3) The chairman shall be appointed by the President and shall be independent in his functions subject only to the Constitution and the law.
I suggest that this amendment should be debated with amendment No. 14, because they are inseparable—one would not make sense without the other. If the Chair is agreeable, I propose to deal with the two together. I will not move the next amendment if this amendment is not accepted. I am only anxious to save time.
On the Second Stage I spoke about the principle involved in this at considerable length and to a certain extent what I said on the last amendment applies to the reasons for this amendment, but there is this difference. Neither Senator Summerfield nor I put any amendment down on the lines of the last amendment and that is because we feel, as I stated, that we are accepting the position as it comes from the Dáil, whether we completely like it or not. But the question of the chairman does not seem to me to be a part of that scheme and I would like once again to put strongly before the Minister that it would be desirable that the chairman, right at the beginning, should be a person who would be taken right away from his present occupation, who would be debarred from holding any direct active financial interest in any industry or in any type of business that would be likely to come before the court, and who would be pensioned at the end of his period of office.
The form of this amendment may not be perfect. It is designed to put the chairman in the same position as a High Court judge. The principle underlying it is that he should be independent in his functions and should be pensioned at the end of his period and for that reason should not be allowed or expected to make other provisions either for his livelihood when he ceases to be chairman or for his living while he is chairman. I think it is agreed that the chairman should not have any other occupation—that is pretty clear from the Bill. It is not clear how he will live when he ceases to be chairman. It seems to me he is bound to have his eye open unless he happens to be an extremely wealthy person or with considerable resources; he is bound to consider what will happen at the end of his two, three or five years or even longer in office.
I feel that the success of this court will depend partly on the independence of the chairman, but to a considerable extent on the belief on the part of the parties who come before the court, whether workers or employers, that he is independent. I am sure there are persons who, because of their strength of character and ability, could be trusted to act with complete balance and fairness and impartiality, even though they did not know what would happen at the end of three years. I believe that this may be an extremely important factor, and for that reason I urge very strongly that there should be a change in the position of chairman and of the method of appointment.
I sympathise with the reasons given by the Minister, and I say at once that I do not intend to press the amendment if he adheres to the view he expressed. If I had given more thought to the remarks he made, I would probably have included a proviso that the chairman should be independent for a period of five or six years and that, at the end of that period, the appointment might be renewed, but that if it was not renewed, he would get his pension. As these amendments stand, it is clearly a life appointment which, I think, as time goes on, would be the desirable and proper method, but—I am taking into account the difficulties mentioned by the Minister as to the first appointment—it might be that it would be cheaper and perhaps wiser that the first period should be limited, though, at the same time, I would prefer to take the chance of choosing a person and asking him to make the job of chairman of this court his life work for the remainder of his active period.
I do not mind whether that person is or is not a judge. I do not believe that it is at all essential that he should be a judge. I do believe that it is essential that he should detach himself from other work and from other means of livelihood and public interests. Perhaps I might illustrate what I mean by saying that I believe the present Minister would be an excellent person for the position, if he were willing to give up politics.
A lot of people would like it, if he were to give up politics.
I, however, have not the appointment; he has. I mention him merely as a person who has had experience of meeting different classes of persons, of bringing them together and of acting in a conciliatory manner and on that basis I believe that my colleague who is not here to-day, Senator Hayes, would be well fitted and quite competent for the position. I mention these as people who are not actively engaged as workers or employers.
What about the Senator himself?
I suppose the only answer I could make to that would be to suggest Senator Foran, but, for various reasons, for reasons which may or may not be complimentary to us, I think neither of us would be suitable. I mention improbables in order to give an idea of what I have in mind. I think it essential, however, if the court is to be a success, that the first chairman should be a person who will not look forward to another job at the end of this period, to put it in its crudest form. The matter is based on the Constitution and it does not take us in here. We know that, when the President appoints, it is the Government which appoints, and that, when the Dáil removes by a bare majority, it is virtually the Government which removes. The fact remains, however, that, though we would not be taken in, the public would be, to this extent that they would regard that type of appointment more as that of a judge, and the fact is that, although the Government can to-morrow remove a judge by a bare majority, tradition and public feeling is such that they would not do it, except for extremely good reasons—not simply stated reasons but reasons which were generally acceptable.
I expect and hope that the chairman of this court will be in a similar position. I do not think the Minister shares my view, but I believe it is one of the things we will come to yet, if the court is to be a success. I felt that it would be a mistake to pass the Committee Stage without putting down an amendment of the kind. I have consulted a very large number of representative employers and I have not met one who does not feel that, taking it all round, a chairman appointed in this manner would be more satisfactory and would have a better chance of becoming a really satisfactory chairman.
Although I am joined with Senator Douglas in these amendments, I do not join with him in his suggestion that the Minister should commit political hara-kiri, and assume the responsibilities of chairman of this court. I feel strongly, as do all the employers with whom I have spoken, that the real king-pin of this court will be the chairman. We also feel that the ordinary members should be, not, as Senator Duffy said, advocates, but experts in both the employer and labour point of view. Whatever about the ordinary members, however, it is generally agreed that the chairman must be, amongst other things, a modern Solomon. We will not get a man who will make a success of this job if he starts off with any feeling of insecurity, or any feeling that he is dependent on any section of the community for his ultimate position when his period of office is over.
I hope this court will be a big success and the nation must hope that it will be a big success. In the troublesome years which lie ahead, we can envisage a situation comparable with that of pre-war in which every other day saw strikes, lockouts and disturbances. Whatever the cause of a labour stoppage, whether it be lockout or strike it is pernicious and damnable from the community point of view, and therefore I join with Senator Douglas in urging the Minister to consider the principle underlying these two amendments and to examine them with a view to seeing whether he can accept the idea behind them. We want to feel that the man who will get this job will, from the word go, know that he has assumed a position of tremendous responsibility in the State and that he has something to live up to but also something to live on, and that he need have no worries when he sits down to his job.
These amendments contain two ideas. I do not think it matters very much by whom the chairman is appointed. Personally, I favour the idea of appointment by the Minister. This is an experimental Bill and it will be the responsibility of the Minister for Industry and Commerce to make the experiment a success. I see an advantage in having it quite clearly understood that, during the initial years of the court's existence, when there will still be doubt as to whether it is going to be fully utilised by parties concerned in industrial disputes and fully effective in preventing industrial disputes the Minister has the responsibility of making it work. I would regard it as undesirable to disguise in any way the responsibility which should rest on the Minister in that respect.
A far more important point, however, is the tenure of office of the chairman, and I would urge Senators not to allow themselves to be misled by a false analogy between this court and a court of law. In the case of a judge of a court of law, there is absolute need for independence and a guarantee of independence. The citizen must avail of a court of law if he wants to secure his rights. The decision come to by a court of law is binding on him. The Government is often interested in the decisions taken in the courts of law, and consequently, if there is to be impartiality and a guarantee of impartiality to citizens, it must be clear that the judges of the courts of law are independent of the Government, that the Government cannot remove them and cannot penalise them in any way if they make decisions which the Government does not like.
That is not the position of this court. We have a guarantee of impartiality in the case of this court which is of a completely different character. The parties concerned in industrial disputes do not have to use this court and they are not bound by its decisions. This court will be utilised if the parties concerned believe it to be an effective instrument, if they find that, in practice, it is impartial, that it gives fair and acceptable decisions. It will not be used otherwise.
There is consequently less need to be concerned about the independence of the chairman of this court vis-a'-vis the Minister than there is to be concerned about the independence of a judge in a court of law vis-a-vis the Government. It is to be assumed that, in the majority of cases, the Government will have no interest whatever in the decisions of the court. The Minister will have little reason to interfere with the independence of the chairman. If he does interfere with his independence, the parties concerned have a remedy: they can use other means of settling their differences. They do not have to go to the court, or accept the decisions of the court, except where they have voluntarily decided to submit themselves to these decisions.
While, therefore, the independence of the chairman is important, it is far less important than the independence of a judge in a court of law and no more important than his wisdom or his tact. If we give the chairman of this court the same tenure of office as a judge of the High Court, we are in fact basing the success of this whole experiment upon the soundness of our choice. Lack of tact may be a far more serious fault than lack of independence, because it could, in fact, result in a complete refusal to use this court by either of the parties in an industrial dispute. Lack of wisdom will certainly result in the court not being utilised. If we appoint a chairman because we have selected him for his impartiality, we will only find out whether he has tact and wisdom, and is able to perform the job successfully when we see him working, and if we cannot remove him from office then we have prejudiced the whole experiment by that one unsound choice.
I think it is unwise to create a position in which the chairman of the court cannot be removed except for stated misbehaviour or incapacity. Lack of tact or wisdom may be incapacity, but it is not the type of incapacity we can prove. These are matters upon which some one person must be able to exercise a judgment, noting the general reaction of the parties using the court to the decisions emerging from it.
That is why, I think, in the initial stages of this court's existence, there should be means by which the chairman of the court can be removed and another chairman appointed. I would regard it as unlikely that when a chairman would be appointed he would be so lacking in independence, tact and wisdom that he would have to be removed during his term of office. I think we should contemplate an appointment for a term of years, to be renewed if the person is a success, and not to be renewed if, for any reason, which does not necessarily mean incapacity on the part of the individual to hold another office successfully, he is not the most suitable person for the appointment.
I do not think we should exaggerate the importance of independence. There is, in fact, little danger that any undue influence can be brought to bear on the chairman of the court to the detriment of the parties using it because the parties using the court will have another obvious remedy open to them. They have not to go to the court; they have not to accept the decisions of the court. I urge that safeguards which might be considered desirable to secure the independence of the chairman could, at the same time, constitute impediments to the successful working of the whole scheme. For these reasons, I urge that the Bill be allowed to stand as it is, that the chairman should be appointed by the Minister and be appointed for a term of years. If the court becomes an established organ in our national life, regularly utilised and serving the purpose we have in mind in framing the measure, then its constitution can be re-examined at another stage, and another method of appointment and other provisions for the tenure of office of members devised.
In the initial stages we should have the possibility of rectifying mistakes kept open, because it is, at least, conceivable that mistakes will be made and such mistakes might prejudice the whole scheme. May I remind Senators that there will be only one chairman of this court. There are many judges of the Supreme Court, the High Court and the Circuit Court, but the fact that we are dealing with one individual makes it all the more necessary that we should not find ourselves tied up for the rest of his life to an individual whom time may show to be not the most suitable person for this office.
I am not going to press the amendment. This is a matter on which frankly I do not agree with the Minister. Of course, I agree with him when he speaks of the need for tact and wisdom. I do not believe that tact and wisdom, without the feeling of those who will go before the court that there is a degree of independence, including independence of the Minister, will be satisfactory. It is not good enough to say to them: "You have a remedy; you do not go before the court." We want to have this court so that people will go before it. We do not want to create the feeling that they will stay away because they feel that it is not independent. One reason is that the method of appointment and the standing of the chairman may injure the court in the mind of the public, and the other reason is that in the Minister's mind, that he will get an unsuitable person. I do not think the latter reason of the Minister is as serious as the one that I am afraid of. Otherwise, I was very much influenced by the Minister's arguments. In this matter I do not agree with him, and I do not think he is right.
All the emphasis seems to be on the part of the employers in regard to the appointment of the chairman.
The whole tenor of the debate seems to emphasise the position of the chairman from the employers' point of view.
I spoke at considerable length and it is wrong to say that the emphasis as regards the position of chairman was from the employers' point of view.
I am sorry if I misinterpreted the Senator. The impression left on my mind was that the chairman was to decide all the business of the court. It appeared to me to suggest that if there was satisfaction in regard to the appointment of the chairman nothing else mattered.
No. That is your opinion.
I accept that as my opinion after listening to advocates of the supremacy of the chairman.
I am glad to know that, because it created the fear in my mind that the other members of the court were to be regarded as dummies, that the chairman would decide everything, that the views of the other two people would be worthless, and would cancel each other out 99 times out of 100. Call it what you like, I am very anxious that this court will be a competent one, and that the chairman will not play the important part in it that it is assumed here he will play. There are two occasions only on which the judgment of the chairman will be important. It will be important in the case of a threatened dispute or actual dispute in which the court is called upon to give an interpretation. If the employer members of the court take one view and the worker members another view, the chairman's view will prevail regarding the form of declaration which the court will make. The other instance in which the chairman's opinion will be important is where the court is asked by a court of law to interpret a registered agreement. If there is a conflict between the employers' side and the workers' side the chairman's view prevails. I should hope that the workers and the employers, in making their appointments, would have that in view and that they would ensure that appointments would be made which would take away from the chairman the authority which Senator Summerfield and Senator Douglas seem to think he will have.
Amendment, by leave, withdrawn.
I move amendment No. 13:—
In sub-section (3) to delete all words following the word "be" in line 1 page 6, to the end of the sub-section, and to substitute the following words: "one of the judges of the High Court for the time being to be assigned from time to time by the President of the High Court at the request of the Minister."
When I adumbrated this amendment on the Second Reading, the Minister did not receive it with open arms. Ordinarily speaking, I should not have pressed the matter in view of his suggestion that the amendment was unacceptable but further thought and further discussion with people who are interested in the matter convinced me that this is a good and important amendment and that, on its acceptance, may ultimately turn the success of this measure. From the discussion both on Second Reading and on previous amendments, two lines of thought have clearly emerged. One line has emphasised the necessity for the independence of the chairman; the other has emphasised the necessity for his removability. That saves me having to suggest the importance of both those attributes of the chairman. Other people have put the argument forward. I accept fully that it is necessary that the chairman should be independent and should be removable. The amendment I now submit to the House is, I believe, the only method of reconciling those two necessities which are so strongly emphasised by people qualified to form an adequate opinion on the subject.
The amendment which I put before the House suggests that the chairman be selected from existing High Court judges. I should prefer to include in that existing Circuit Court judges. If you do that, you will ensure that the chairman will be completely independent and that he cannot gain any advantage, pecuniary or otherwise, by his conduct while he is chairman of the labour court. If my amendment were accepted, it would ensure that he could be removed overnight because he is to be assigned from time to time by the President of the High Court, who acts at the request of the Minister.
In other words, if you appoint judge No. 1, who is independent but lacks the attributes of tact or wisdom which the Minister very properly postulates for the position, the Minister can say to the President of the High Court: "This is an independent judge but he is not an ideal judge; will you assign somebody else?" No bones are broken; no prestige is involved. No loss is involved in one judge vacating the position of chairman of the tribunal and going back to the High Court and in another judge coming from the High Court to take up the position of chairman of the tribunal. Therefore, you automatically ensure by one stroke complete independence, and removability as often as the Minister comes to the conclusion that, whatever may be the virtues of the judge assigned for the time being, he is not perfect and it would be a good idea to have a trial of somebody else.
It may be said that, from the rota of High Court and Circuit Court judges, you may not be able to get anybody who is ideal. I hardly like to accept that view. That from that rota you could select someone who would perform the job adequately and satisfactorily, I have no doubt. He would, at least, start with many of the qualifications which are postulated by the Minister. I shall not suggest that every judge is a masterly lawyer or, indeed, that, in dealing with facts, every judge presents a constellation of genius to the world, but the fact is that that is what they are trained in doing and that, as a whole, you are more likely to get people experienced in the type of work involved amongst judges than amongst any other class. There is an even more important consideration. Rightly or wrongly, the public regard judges as persons whose training has led them to be independent and impartial. You may hear many things alleged against a judge. You may hear that he is stupid or deaf or old or sleepy or inattentive but I never heard it urged against a judge that he was not substantially impartial.
You never heard it alleged that he was prejudiced?
I have never heard it suggested against a judge that he was substantially prejudiced. He may have his own little quirks and foibles in certain matters but I have never heard it alleged, even amongst his own colleagues, who would be apt to be somewhat critical, that a judge was prejudiced. In the eyes of the public, a judge is impartial and independent. There is a real danger that this court may become a little huggermugger coterie of employers' and labour representatives, interested in promoting those interests which are common to them at the expense of the consumer and the general public.
There is the greater danger that they may come to be regarded by the public as such. The suggestion of the workers might be that wages should be raised. One would imagine that the employers would be adverse to that. But it does not matter to the employer how much he raises wages provided he can make a proportionate increase in the price of the article which he sells. In fact, he will make more money on it if his percentage remains the same.
Provided he can sell the goods.
That applies more particularly to articles of which there is a quasi-monopoly here. If you are dealing with an industry which is protected by high tariffs and when perhaps there is only one factory in Ireland which is producing the particular commodity, it would be extraordinarily easy for workers and employers to combine to increase the wages, to retain the percentage of profit for the employer, which would in fact double his actual profits, and all at the expense of the consumer. I am not going to suggest that the court will do that as a settled policy. I do think they might slide into it very easily and I think it is even more likely that the public will suspect them upon those grounds and if the chairman is the key-stone of the arch, which is the analogy I used—Senator Summerfield said the lynch-pin—the way to avoid that is by appointing a person who will not only hold the scales evenly but will be able to take into consideration matters outside the narrow commercial point of view, who would look at it from the point of view—I do not like to say of the State; it is a word I always avoid because it means practically nothing—but from the point of view of the ordinary public.
Those are, I think, sound and valid reasons why the chairman should be a judge: because he would be independent, because if my scheme is adopted, he can be removed overnight without any loss or without any feeling of grievance, and because he will be regarded by the public as a person who will protect their interests as well as holding the scales impartially between the interests of labour and of capital. But, there is a last reason.
The Minister has suggested that a person need not come to the court unless he wants; that it is necessary a judge should be impartial because any citizen has to go to a court to get his rights; but surely the Minister has forgotten the provisions, admittedly fantastic and bizarre, as they are, which he has inserted later in the Bill whereby the courts of this country are to abrogate their function, an exclusive function of law by the provisions of the law as it now stands, of interpreting written agreements; whereby a jury action may be held up while the court refers to the labour court the interpretation of an agreement—a matter of pure law; whereby a partnership, whereby the winding up of a company, whereby a contract, whereby an action involving a question of workmen's compensation, may all be intermitted while the courts of the land whose training is to interpret written documents, a sole question of law, send to the labour court for decision the matter which is going to decide the case brought before the courts of the land for decision by the citizen who, as the Minister has pointed out, is entitled to call the courts to his aid. You are going to send that to a court or a tribunal, if you like, which has not got a lawyer on it or which may not have a lawyer on it. Those provisions I shall have to deal with at greater length subsequently but, if they are to remain in the Bill, it is an overpowering reason why the chairman should be a judge.
The Minister, I think, quite avoided the issue when he suggested that there was no analogy between this court and a court of law, when this court is to tell the court of law what the correct construction of a written document is, when you might have a construction by one division of a document to-day, another construction by the other division to-morrow and then, when it ceases to be a registered agreement, a third construction by the law court before whom it comes, when there is no longer any power to refer it to the labour court. The medley of confusion which opens before our eyes if you are going to have a court without a lawyer as chairman and at the same time to have purely legal questions referred to that court, and the courts of the land bound by an interpretation which may be utterly untenable and legally fantastic, is one which I do not believe the Minister has considered. What is more, I do not think it is constitutional and I do not think it would last five minutes if it were challenged. I think the Minister is running a very great risk if he reserves the Bill as it is without providing for a judge to be chairman of it while retaining the provisions whereby it is to dictate to the courts of law what is the legal meaning of a written document.
I have spoken at some length upon this amendment because I am convinced that, if the Minister is going to retain later provisions of the Bill, he must have a judge as chairman. I am further convinced, even without those arguments, that it will work more smoothly and will command greater confidence from the public, who will feel that there is somebody there to look after their interests if the Minister adopts this suggestion which I make. I finally once again call the attention of this House to the fact that it is the only way to combine the requisites which are demanded by the Minister, by Senator Douglas and, I would think, also by Senator Duffy, that the chairman should be both independent and removable if for any reason the particular facets of his genius do not suit the position.
I support the amendment which has been moved by Senator Kingsmill Moore. He has set forth the reasons for the amendment which I would have stated had I spoken before him but he has given my reasons far more eloquently than I could. Therefore I do not wish to repeat the arguments which he has put before the House. This is an extraordinary position. A tribunal is being set up to promote harmonious relations between employers and workmen. That tribunal might be called by any name, it might be called a labour tribunal, but it must bear the glorified name of labour court. The word "court" has been taken from the courts of law set up by the Constitution and applied to a body of men who need not be lawyers and who will not be lawyers if the Minister, and more especially the trade unionists, have their way, which they will, of course. The Minister, I think, would not be adverse to the amendment which has been moved by Senator Kingsmill Moore because I am sure his better judgment would tell him that in the past when courts of inquiry were set up under the Industrial Courts Act, 1919, it was the practice to appoint as chairman a judge, whether he was a Circuit judge or a High Court judge, and that practice worked satisfactorily. But, from the speech delivered by the Minister on the Second Reading of this Bill it would appear that the objection to the chairman of this tribunal being a lawyer comes from the trade union movement. I am very much surprised at that because I have heard a lot of slogans and shibboleths emanating from the trade unions—"One man one job"; "Do not blackleg"; "Do not employ unskilled men where skilled men ought to be employed." This is where the trade unionists are showing themselves contrary to their professions in the past. However, I do not mind that. I do not mind what kind of tribunal the employers and workers wish to have to settle their industrial differences but I do object to glorifying that tribunal by the name of a labour court and by referring to those unskilled men questions of law under Section 33 and Section 57 of this Bill which, in my submission, are questions to be determined by men of skilled training in law and in the interpretation of documents.
It is all very well for the Minister to say that this is a voluntary tribunal and that nobody is bound to go to it, but in Section 33 it is provided that, if any question should arise in any proceedings in a court of law as to the interpretation of a registered employment agreement or its application to any particular person, the question shall be referred to the labour court. There is no option but to refer it to this tribunal of unskilled men, to apply legal principles to the interpretation of a written document. Where is the voluntary system there? I say it is absolutely contrary to the Constitution, but I will deal with that later on, when we come to the section.
The trade union leaders wish to have it both ways—they wish to call this tribunal a court, but they will not have a lawyer as a judge. They had a lawyer as chairman of the Railway Rates Tribunal for over 20 years and when they were appointing him they made it a condition that he be a lawyer, a senior counsel or a retired judge. Senator Duffy has stated that agreements were construed by the Railway Wages Tribunal. They were: they were construed by the chairman, who was a lawyer. This is the first time that a body of laymen, under the guise of an Act of Parliament, have constituted themselves lawyers. They have obtruded themselves into this profession, for which they were not trained and to which they have not served their time. I am sure that, if any unfortunate working boy in this State should try to become a skilled mechanic or a skilled worker, the trade unions would soon put him in his proper place, if he had not served his time or was not the son or grandson of someone following that particular trade.
If this tribunal, which is to discharge certain legal obligations, is to function properly, the appropriate chairman would be a High Court judge, as Senator Kingsmill Moore has said. If he is not, let him be an umpire. On the Second Reading, Senator Foran said that this was a glorified arbitration court. Let it be so, but call the chairman an umpire and do not call the three men a court. Call it an arbitration tribunal or by some other name and let it perform give-and-take functions, such as splitting differences in wages or trying to inculcate reason into obstinate trade unions on the one hand or obstinate employers on the other hand. In other words, if the chairman is to be a good mixer, a hail-fellow-well-met, a man able to use a lot of soft soap on recalcitrant trade unions and recalcitrant employers, let him be a chairman but call him an umpire and do not call the body of men a court. If we are to call it a court and assign to it certain legal functions, then the chairman should be a lawyer and the most suitable form of lawyer is a High Court judge, who is independent and who has nothing to look forward to from one side or the other. He may be assigned from time to time as the occasion requires it, by the President of the High Court and, if one High Court judge is not a complete success, another might be appointed. I have no brief at all for High Court judges; but they fulfil certain functions under the Constitution and I think this is one of the functions they should fulfil and for which they are suited.
I strongly resent the appointment of a High Court judge or any other lawyer in an industrial matter of this kind. To hear Senator Kingsmill Moore and Senator Ryan talking, one would imagine that judges are infallible, but we see in the papers almost every evening that there are appeals of one kind or another against their decisions. That does not give us very much confidence in their infallibility. It depends on whether it is Senator Kingsmill Moore or Senator Ryan who would be the advocate before certain judges, to influence a decision. If we have a judge, it might be either Senator Moore or Senator Ryan who would appear before him and what would we unfortunate trade union officials have to do then but put our case in their hands?
And very safe hands, too.
Very costly ones, I think. They might go on to advise until ultimately the High Court would be reached—and our funds in the trade union movement do not run to that, as a rule. At any rate, we do not like to see our money spent in that way. We believe the court suggested by the Minister will be more effective and will have a much greater appeal to the people who will have to use it.
Senator Kingsmill Moore drew a lot of approval from Senator Sir John Keane when he talked about this court being a kind of "Jolly Roger"— the employers and workers sitting down together to exploit the community. I agree that that could happen and on the Second Reading I pointed out— perhaps not in so eloquent a manner as Senator Kingsmill Moore—that the danger was there and I hoped the Minister would ensure a better arrangement for the control of prices. As a result, we got the Minister's assurance that a new control of prices Bill would be introduced. Therefore, the worries or fears of Senator Keane and Senator Moore will be largely removed if a Bill is brought in to control prices.
It is not as simple as that to settle the matter.
At any rate, it is the Minister's responsibility to ensure that neither the employers nor the workers can take advantage of the community in general. Apparently, he had that in mind when he promised to bring in a Bill for the control of prices.
It may be difficult to make it effective.
I hope he will be able to manage it. He did it fairly well during the emergency and I think he is competent to bring in one that will ensure some definite safeguard for the people in the future. My experience of lawyers in industrial matters does not inspire me with the confidence with which Senator Kingsmill Moore or Senator Ryan are trying to inspire this House. In industrial matters, I found they were very simple; they have not the experience necessary to equip them for a job of this kind, so it would be unwise to put in a lawyer as chairman. As has already been said, the whole fate and future of this legislation will largely depend on the chairman, and I sincerely hope that the chairman will not be a lawyer.
I would strongly urge on the Minister to give favourable consideration to this amendment. Senator Ryan has referred to the fact that this is called a court. That is true. He has also referred to the fact that certain offences will have to be charged against certain people in that court, and both he and Senator Kingsmill Moore suggested that it may be contrary to the Constitution to have such offences tried by a court that would not be a properly constituted legal court. Article 37 of the Constitution gives certain rights to courts that are not legal courts. It gives them the right to try certain matters, but denies them the right to try any matters of a criminal nature. I would suggest that to pay wages contrary to an agreement or contrary to an order made by this court would be a criminal matter that would have to be decided by another court.
The payment of wages contrary to a confirmation Order would constitute an offence, and as such would be tried in the ordinary courts of law.
Very good. A very important matter which occurs to me is this: this will be a very important court and numerous people will be concerned in its decisions. In the ordinary law courts—the District Court, the Circuit Court, the High Court, and the Supreme Court—you generally have one party on each side. You have only two people concerned, but in the case of this court you will have hundreds and, possibly, thousands of people concerned in its decisions. Now if the matters which are to come before this court are so important, the person who will be the pivot in the whole situation will be the chairman.
You cannot, I think, have too good a man to act in that position. I am quite certain that the Minister will select the very best man that he possibly can get, but it is impossible to say that any man that you appoint, no matter how good he is or how well qualified he is, will be as good as you think he will be. In the case of judges, it has often been found that while they were very good men at the bar, that some of them did not turn out to be good judges. The same thing may apply to the chairman appointed to this court. If you do find out, after he is appointed, that he is not the man that you thought he would be, you cannot change him. It will be impossible to change him once you appoint him. At least, you must have very grave and serious reasons for doing so. It will be very hard to know how unfitted a man would be before you could change him.
I agree that it is very necessary, so far as this court is concerned, that its work should be done with expedition. The Minister stated that he had considered at one time appointing two courts instead of one because he thought that the amount of work to be done would be so great that it would be impossible for one court to perform all the duties that it would be called on to perform. I can well imagine that before an arbitration court of this sort, where there will be questions of fixing wages and so on, that a number of irrelevant matters will be introduced. People will talk irrelevancies. Others will answer with irrelevancies, so that I think the only person who would be capable of dealing with these matters would be a man whose training had been such that it would enable him to exclude all these irrelevant matters and get down to the point. I think, if you have not a person of that kind, the proceedings before the court are likely to be prolonged.
You will have employers present. They will tell their spokesman, whoever he may be, to urge this, that and the other. You will have the same thing on the side of labour. They will think that their spokesman is not doing his duty unless he brings up this, that and the other matter. They will prompt him to do that. I think you must have somebody as chairman who will be able to exclude all that so that the work of the court can be done quickly. If the work is not done quickly, then the court will not be able to get through the work that it will be called upon to do. That is one of the principal reasons why I suggest the chairman should be a man who would have been trained in the law.
I am not suggesting that a judge is not capable of making mistakes. Judges are certainly capable of making mistakes, but in regard to them there is one thing that all of us recognise and it is that a judge is an independent person; he is a man who cannot be influenced. He may have his own peculiarities, but he cannot be influenced. There is another point and it is this, that if one judge is found not suitable for this particular work, the President of the High Court can appoint another judge in his place, and he can go on doing that until he gets the ideal man. If he does get the ideal man he can keep him there. I do not care what salary that man is paid because the work to be done is so important. I would ask the Minister to consider the amendment carefully.
I would like to intervene at this stage to make this point clear, that my objection to the amendment is not one of principle. It is a practical objection. I can foresee the day when this Bill, having become an Act and having been operated as an Act, might be amended along the lines suggested by Senator Kingsmill Moore. That day is not here yet. The objection of the trade unions to the appointment of a judge as chairman of this court may be logical or illogical, but it is very real, and I must recognise the fact that it is very real, and that if a judge is appointed it is extremely probable that the court will not be utilised by them. They fear, and I think with some justification, that the establishment of this court upon the basis contemplated by the amendment, with a member of the High Court as chairman, would involve the same procedure before it as that which obtains at present in a court of law. They fear that it would involve them in legal costs, and would mean the replacement of the trade union secretary by a lawyer, and that altogether the business of negotiating and regulating wages and conditions of appointment would be established upon an entirely different basis from what it is now.
Therefore, I cannot accept the amendment because I believe that if the amendment were accepted the court would not be utilised. That situation may change in the course of time. If the court is utilised, and if the habit of using it develops amongst the trade unions there will develop also a new mentality and a new outlook, and the advantages of having a person with the independence of a member of the judiciary and with the training of a lawyer as chairman of the court, may become more obvious. I must oppose the amendment now.
I want, however, in doing so, to oppose the point of view put forward by Senator Kingsmill Moore, that it is only a member of the High Court who will be able as chairman of this body to protect the interests of the public against a possible combination of workers and employers to exploit the public to their mutual advantage. That is a complete fallacy. In fact, I am not at all sure that a member of the High Court might be the least suitable person to exercise that protective function on behalf of the community as a whole. I think that it should be possible to get as chairman of this court somebody who is not a member of the High Court who will be quite competent to realise whether the public interest is involved, or whether the public interest might be exploited to the undue advantage of the parties concerned in trade negotiations. However, the fact that the matter was referred to indicates an erroneous point of view.
If there is a desire on the part of employers and workers in a particular trade to get together to exploit the public, they do not have to wait for the enactment of this Bill to do that. The establishment of this court is not going to give them any advantage in the fulfilment of that desire that they have not got now. It is the function of the Minister for Industry and Commerce or of the Government to protect the public, if there is undue inflation of prices by reason of any such conspiracy as Senator Kingsmill Moore referred to, through its existing powers or new powers acquired for the purpose. The Government's powers will not be any the less if this Bill becomes law and the court is established. What we are proposing here is to provide means by which trade disputes can be avoided, by which agreements which will regulate wages in particular trades can be facilitated in the making, and maintained in operation when made. It will not be primarily the function of the chairman of the court to examine agreements presented for registration from the point of view of their effect on the public. The Minister for Industry and Commerce or other members of the Government will have the obligation to ensure that these agreements do not involve the creation of conditions in any particular industry which would justify the withdrawal of protection or some other advantage given by the State to persons concerned, in order to secure rectification of that position.
Furthermore, Senator O'Dea brought forward a point of some importance when he spoke of the need for preventing irrelevancies in court. Anybody who has had experience of the negotiation of agreements, in relation to matters of wages and conditions of employment, knows that the one thing he must not do is ruthlessly to eliminate irrelevancies. If he does he will get no agreement. It is precisely because this court is functioning on a different basis from a court of law where irrelevancies can be excluded and where the established procedure in the trial of a case is binding on everybody, that I think the introduction of a judge, whose training would be of a specialised kind, might involve, in the case of this labour court, a risk which we ought to avoid. I think that this court must allow, within reasonable limits, irrelevancies to be debated because the ventilation of these matters—grievances which have no direct relation to the points in dispute—and the opportunity given to have them brought to light, are very largely a necessary feature in a negotiated settlement of a trade dispute. However, I do not want to be taken as arguing in principle against the amendment. I think the time may come when there will be general agreement, after the court has been constituted and the public have gained some experience of the system, on the chairman having a legal training and possibly some judicial experience but that time is not yet. It may be that before many years, and after the habit has grown up of using this court, such agreement will be possible but at present the acceptance of this amendment would condemn the court to futility from the beginning.
The feeling has again been created in my mind that the court which is being discussed is not the kind of court proposed in the Bill. Senator Kingsmill Moore, with the very vocal applause of Senator Sir John Keane, talks about the need of a chairman who will prevent exploitation of the public. The Minister has fallen into the same error when he talks of that matter from another angle. Surely the chairman will have no power under the Bill to prevent exploitation of the public if the other four gentlemen agree to embark on such exploitation? If even three of the four decide to put up wages by 100 per cent. and that prices should soar as high as possible, the chairman and his remaining colleague are perfectly helpless.
There will be only one occasion when the chairman can influence a decision and that is when the other four members are divided among themselves or he can probably influence a decision by leaning with two members as against the other two. Normally, however, the four other Brehons will take care that they will decide what is going to be done if there is any question of exploitation.
The idea also seems to have prevailed throughout the discussion that the court will be in permanent session. The discussion has proceeded on the basis that this court would sit from 6 o'clock on Monday morning until 12 o'clock on Saturday night, doling out justice to everybody in disputes about trespass of goats, hens, etc.
It would be very unlike judges or lawyers to sit during these hours.
I understood from Senator Ryan that the lawyers are very strong on the trade union side of their business so I expect they would be charging double time for any work done after four o'clock in the evening or before 12 o'clock in the morning, but, from the trend of this discussion it does appear that there is a view that this court is going to remain in permanent session and that all sorts of matters will come up for discussion. I thought the Minister might enlighten us as to whether that is the intention because, as I see it, after the first few months, when the court will be busy recording bonus orders and stamping wage orders, the business of the court will be to sit back, get its negotiating officers to go out, intervene wherever a dispute is threatened and try to make a settlement. As I understand it, the court itself will not intervene at all in industrial disputes except as a last resort. In fact, the court will be precluded from intervening in differences in most cases except where it is clear that there is going to be a dispute. The time of its conciliation officers, that is the officers of the court, and perhaps of the chairman and individual members will be taken up interviewing employers and trade union representatives and endeavouring to get a settlement, rather than in sitting on a bench like five ancient Brehons dispensing justice to all and sundry.
The court may also have the function of an ordinary court when one of these debatable points is referred to it from a court of law for its interpretation. Perhaps the court will have to sit in relation to matters somewhere outside the immediate scope of its work as set out here but I cannot see the court hearing cases in constant session and the chairman keeping order with a mallet to prevent witnesses indulging in irrelevancies. That is not going to happen except rarely. I imagine, and hope, that the main function of the court will be to ensure that its officers are as active and perhaps more energetic, than the officers of the Department of Industry and Commerce at present in intervening where a dispute is threatened so as to prevent it coming to the court at all.
Perhaps I might be permitted to withdraw the amendment, having regard to what the Minister has stated. I want to make it clear that I was not so much suggesting that the court would enter into a conspiracy as that there was a danger of the public suspecting that it might.
Amendment, by leave, withdrawn.
Business suspended at 6 o'clock and resumed at 7 o'clock.
Amendments Nos. 14 and 15 not moved.
I move amendment No. 16:
In sub-section (4) to add at the end of sub-paragraph (a) the following proviso:—
"Provided that the Minister shall, in respect of one employers' member, designate as the trade union of employers to make the nomination a trade union representative of an agricultural interest."
In asking that one of the ordinary members of the court should be a representative of agriculture, I am sure that the Minister will agree to the justice of that, particularly after the speeches of Senator Kingsmill Moore and Senator Foran, who pointed out that there was no safeguard to protect the public from an employers' member and a workers' member fleecing them.
Senator Kingsmill Moore is not here and I cannot speak for him; but I can speak for myself and say that I did not say that.
You stated it on the Second Reading. At all events, the fact remains, whether Senator Foran said it or not, that it is plain to everybody that it can occur. The only safeguard would be to adopt my amendment to appoint a representative of the greatest consumers of goods in the country to be an ordinary member of the court. The biggest section of our population are engaged in agriculture. They are the biggest buyers of manufactured goods. They are the biggest users of the transport services and they are the biggest customers of the banks or any allied concerns. There is no dispute in any industry which does not directly or indirectly affect agriculture. The farmers and agricultural workers have always to pay the biggest portion of any increases given by manufacturers to their employees. As Senator Kingsmill Moore and Senator Foran stated, manufacturers can agree to raise the wages of their employees to any extent so long as they can be compensated by increasing prices to the general public. The only protection for us is to have a representative of the biggest consumers in this country on this court, namely, a member of a trade union of agriculturists. For these reasons, I feel it is unjust and unreasonable to exclude agriculture from participating in any way in the operations of this court.
If properly considered, I am sure this amendment will be accepted by the Minister. According to the Bill, the Minister seems to think that agriculture is not an industry worth considering and therefore has not included it. Possibly he thinks that there is never a strike or a lockout in the agricultural industry. That is not so. We have had strikes and lockouts in the agricultural industry and, when agricultural workers and farmers fall out, it is not so easy to settle their differences as it is in the case of industries in the towns and cities.
We have a strike at the present time, but I will not refer to it. I remember some previous strikes between agricultural workers and farmers and nothing as bad ever occurred between manufacturers and town workers. They burned houses and straw, spiked corn and did all sorts of things as a retaliation against the farmers. For that reason there is a greater necessity for having agriculture represented than there is in regard to any other industry.
I suggest that the amendment should be accepted. I am sure that Senator Foran and other trade union people will agree that it would be unfair to deal with questions affecting agricultural workers and farmers without having a suitable representative in the court to see that the case for the farmers is properly put, and that there will be a fair decision as between the agricultural workers and the farmers.
Is there a licensed trade union of agricultural employers?
There is one in the County Dublin.
It is not licensed in my Department.
I have a certain sympathy with the mover of the amendment when he speaks of the necessity to safeguard the consumer, but I am doubtful if the agriculturist is the right man to do it. I think he lacks the consumer's conscience every bit as much as the industrial manufacturer. He will exploit the public if he gets a chance, the same as anybody else, although I admit he is more entitled to do so and has better ground for exploiting the public than an industrialist. He is the primary producer, the fundamental producer, and when it comes to a question of excessive profits I can see the wrong, if I may put it that way, to the agriculturist.
This matter of protecting the consumer is most important and it is the aspect that is least regarded in this Bill. The mover of the amendment indicated that the public might think that there is a danger of a conspiracy between the two interests and that they will pass on the burden to the ordinary unorganised consumer. I shall have something more to say about that later on. The consumer is in a shocking position to-day. I do not know if the Minister realises the sufferings even of a £700 a year man in the face of his total inability to keep prices in hands.
If we really wish to discover a means to protect the consumer's interests, all people living on pensions in one way or another should have the right to nominate a representative. The burden of prices is felt more by pensioners of all grades and if you give them representation they will be able to tell you where the shoe pinches. They see the dangers in legislation of this kind.
I ask Senator Counihan not to press the amendment. There is no proposal to give the nomination of a member of the court to any particular class of employers. If we were to do so there would be less claim for nominating agricultural employers than any other class, because agricultural workers come under only one part of the Bill, whereas employers of other workers are affected by every part. There is no licensed trade union of agricultural employers in existence.
Mr. O'Sullivan will be able to tell you there is.
It is not licensed yet. There may be a movement to bring one into existence.
There is a trade union definitely organised.
It has not yet secured its negotiation licence and, consequently, it would be inadvisable to bring it into the Bill on the assumption that an attempt to create such an organisation will be proceeded with. If we were to designate one class of employer we would have to designate others.
Is the amendment being withdrawn?
I do not like to go against the Minister, but I should like him to give me a definite assurance that, when questions relating to agriculture are being considered, the chairman will nominate a representative of agriculture on the board.
There is a provision by which the court can have the services of technical assessors. If a question should come for decision by the court which involves advice on the practice of agriculture, the court can appoint an agricultural adviser to ensure that it will be fully informed on that point.
Amendment, by leave, withdrawn.
I move amendment No. 17:—
In sub-section (4), page 6, to delete sub-paragraph (b).
The intention of this amendment is to preserve the night of nomination for the trade unions; that is, the employers' and workers' trade unions. If the paragraph is allowed to remain, the selection and final decision will be in the hands of the Minister. The workers' trade union think that is undesirable. If they are competent to make the nomination, they are intelligent enough to nominate a person who will have all the qualifications to fill the position. They think it is undesirable that the Minister should have the right of rejection. It will have this effect, that no responsible person will allow his name to go forward for nomination if he believes or has any idea that the Minister will reject him and select someone in his place.
The chances are that the nomination of the trade union will be adopted and the Minister may not be antagonistic but, speaking for myself, I would not allow my name to go forward if a previous name had been put up by the organisation and rejected. I would feel I was, as it is termed in trade union circles, scabbing on another man. That particular paragraph should be deleted.
I am not very enthusiastic about this paragraph, but it was suggested by an organisation of trade unions. They argued that the Minister should take some responsibility for the persons appointed as members of the court and he should, therefore, hold this power of veto in his hands. I do not know how strongly they feel upon the point, but I felt there was some case for it. I could not see a Minister exercising this power unless in relation to a general class of person rather than an individual. In the Dáil, I gave as an example a possible decision by a Minister that he would not accept the nomination of a member of the Oireachtas, that he would reject the nominee, not on ground of personal unsuitability but on the ground of membership of one of the Houses of the Oireachtas. Conceivably, a person might be appointed, might act for a number of years and prove unsuitable —irregular in attendance or unreliable in his work—and there might be grounds for objecting to his renomination at the end of his term. However, I feel strongly that Senator Foran is right in one regard, that the power is of such a character that it is unlikely to be utilised and consequently that it is better to leave it out of the Bill. My difficulty is that I inserted it in the Bill at the request of an organisation of trade unions, and on that account would prefer to keep it there, if there is no strong objection to it. If there is strong objection to it, I am quite prepared to take it out.
May I point out to the Minister that, if the amendment were carried, there would be no power to appoint anybody?
The amendment could not be carried as it is. There would have to be an alteration of the sub-section to achieve the purpose Senator Foran has in mind.
The amendment is to delete sub-paragraph (b), which is the only provision in the Bill for getting members at all.
I ask Senator Foran to withdraw the amendment, and I undertake to produce on Report an amendment which would have the purpose of depriving the Minister of this power of veto, which, I take it, is the purpose the Senator has in mind.
Amendment, by leave, withdrawn.
I move amendment No. 18:—
In sub-section (8), page 6, to delete all words after the word "Minister" in line 47 to the end of the sub-section and substitute the words "shall at the time of their appointment, with the consent of the Minister for Finance, determine".
This amendment is related to some extent to earlier arguments. It is a proposal that the chairman and ordinary members shall have their remuneration fixed at the time of their appointment. I think it is a common practice in most statutes that the terms of appointment and remuneration are fixed at the time of appointment. The Minister will find it in sub-section (2) of Section I of the Industrial Courts Act which sets out that a member of an industrial court shall hold office for such term as may be fixed by the Minister, and it is the common practice in most Acts that the matter is determined when the appointment is being made and is not subsequently varied while that person holds office.
I think that, in practice, the remuneration will be determined before anybody is appointed. I do not know if the Senator regards it as an important consideration. If he has in mind the idea that the Minister may arbitrarily alter the remuneration during the term of office, it is so improbable that it is unnecessary to erect safeguards against it. In practice, the remuneration will be determined before individuals are named, so that, when individuals are being appointed, they will know the terms and conditions of their appointments.
I put the amendment down to meet some of the arguments being made about the need for independence. The case being made in certain quarters is not sustainable, but I think there is need to ensure in the Bill that the terms of appointment will be settled at the time of appointment.
Is it wise? If there is a five year appointment, circumstances may arise which would justify some variation of the remuneration—say, a variation upward, such as might have occurred during the war in the case of other persons appointed by the Government under warrant to particular officers. In practice, the terms will be fixed in advance, but, if we put in a provision which prevents any alteration of the terms during the period of office it might be unfair to the individual.
The idea would be that the terms should not be worsened.
I was not afraid of a worsening of the terms at all. I wanted to get words in the Bill which are common to this kind of legislation and which go part of the way towards meeting the case made with regard to independence.
In the case of a member of the Electricity Supply Board, he is appointed by the Government on a warrant which sets out the terms of his appointment. During the period of his appointment, that warrant could be withdrawn and another warrant issued, providing for different terms. That, I think, has been done in the case of a member of the board on occasion.
Could the Minister say whether that is done with the concurrence of the person concerned?
Generally on the application of the person concerned.
Amendment, by leave, withdrawn.
Amendment No. 19 not moved.
I move amendment No. 20:—
In sub-section (9), line 50, at the end of the sub-section to add the words: "and shall not retain a financial interest in any industrial or commercial undertaking".
There is a feeling abroad that the chairman of this body should have no financial interest in any industrial undertaking, and we feel that that should be one of the conditions of his appointment. In order to place him above suspicion, it should be a condition of his appointment that his entire remuneration should come from his position as chairman of the court. If, for instance, there is a strike in the banking industry and the chairman of the tribunal has an interest in a particular bank, it is not likely that he would give a decision in favour of the employees against his own financial interest. At any rate, the knowledge amongst the workers that the chairman had no financial interest in any industrial or commercial undertaking would bring about a good deal more confidence. If there was a suspicion that he was financially interested in certain undertakings, it would make them very doubtful about the justice of his awards in relation to their applications. We feel that this condition is necessary and very desirable.
I fully agree with the Senator that it is desirable that the chairman should be impartial and should not have any interest in any case which might come before the court, but I think the insertion of the words suggested would be restrictive to the point of unfairness. The chairman will be appointed upon such terms as may be fixed by the Minister when appointing him and the Minister will ordinarily seek to impose conditions which will guarantee his impartiality and which will guarantee that he will not have a personal interest in any case likely to arise, but the words "must not have a financial interest in any industrial or commercial undertaking" could possibly be given a very rigid and narrow interpretation which would almost make it impossible for the individual to save money. A financial interest in the banking concern might take the form of an ordinary deposit account with the bank.
That is stretching it a bit.
It could conceivably be held to have that meaning. I prefer to leave it as it is. The Minister will undoubtedly have to have regard to the desirability of having it generally understood that the chairman is impartial. I think there will be no doubt that we will be able to get a chairman who will be impartial but we must also have a chairman who is known to be impartial. The Minister will frame the conditions of appointment in such a manner as to ensure that, but this form of words might have a very restrictive effect and might make it difficult to get somebody willing to take office because of some possible interpretation of that phraseology.
Are we to understand from the Minister that, while not laying it down as a condition, it will be implied?
It could be set out as a condition of his appointment that he should make a disclosure of any such interest or dispose of any such interest. Some such words as those could be inserted in the warrant of appointment.
If that were done it would satisfy me, and, I am sure, would give a good deal of confidence to the people using the court. If they knew this condition was there, it would satisfy them.
The best guarantee of impartiality is that the whole thing will not work unless it is generally accepted that it is an impartial body.
Amendment, by leave, withdrawn.
I move amendment No. 21:—
To delete sub-section (10) and in lieu thereof to substitute the following sub-section:—
(10) An ordinary member shall not hold any other office of profit or emolument.
The same thing would apply here.
This refers to an ordinary member. May I say that when I introduced the Bill it was worded somewhat differently from what it is now? It was pointed out that if we were to have employers' members they must conceivably be persons who have an interest in some business, and that consequently it would be undesirable to frame the Bill to exclude employers' members from having any other office. That is not precisely what we require. We are not setting up a court of four or five impartial persons. We want an impartial chairman. We do not assume that employers' members or workers' members are going to be impartial. We believe that the court constituted as this will be will be as a court impartial, but we know that within the court there will be people who will be avowedly employers' members and avowedly workers' members.
What constitutes an employers' member? If you lay down that he must not have any association with a business, with employers, he is not an employer and might not be regarded as representative of employers by other employers.
We laid down in the Bill first that a member should not hold any office in a trade union of workers or employers, in other words, that he should not be responsible to the members of an employers' trade union or a workers' trade union, and, be at all times, available for the work of the court. It seems that that is all we require of those members who are not put forward as being impartial members. What we require is that their primary loyalty be to the court, that they do not regard themselves as being responsible to organisations outside the court, and that they always be available for the work of the court. I do not think we should go further. These ordinary members are in a different position to the chairman and are not appointed because they are impartial. They are appointed because they represent a point of view—two of them as employers and two as workers.
It is well known that the view in trade unions is, one man one job. This job is quite sufficient to occupy a man's time without engaging in other forms of activity, as that would not make him a very useful member of the court. Speaking for the workers, I suggest that if a man goes on this body, and has another job, that is not doing the work of the country. I think it is undesirable that a man occupying this position should have another job. The remuneration allowed should be adequate to maintain him without having to engage in any other form of business or industry.
The association with other business must be obviously very slight. He must be always available for the work of the court. It would be undesirable to require that an employers' representative should withdraw from all association with other business, because if we make that condition, I think we will find it difficult to get representative employers for the court.
I should have liked to support the amendment. The reason I am not doing so is that owing to the way the Bill is designed, it does not seem practicable. As already stated, where you are creating a court as is done under this Bill, it would be almost impossible to attach such a condition. Before I would agree to that condition, or before I would like to see the Minister putting that into the terms of appointment, I would have to know what a man was going to be paid, or what provision was going to be made. One thing I am convinced of is, that you are not going to get a court by having people put into the position that, in order to get what they feel is a livelihood, they will have to hunt around elsewhere. That will not get a good court.
I agree that the remuneration should be such as to make it possible for an individual to live without any other occupation.
Amendment, by leave, withdrawn.
Amendment No. 22 not moved.
Question proposed: "That Section 10 stand part of the Bill."
I should like to say on this section that there has been some suggestion, having regard to the proposal in the Bill, that members of the court must be either full time or at all times available for the work, that the Civil Service (Regulation) Act might apply to them. That would be entirely contrary to the provisions of the Bill and, consequently I will have an amendment for the Report Stage, to make clear that the Civil Service (Regulation) Act does not apply to the members of the court.
Sub-section (2) of Section 10 limits the personnel of the court to a chairman and four ordinary members. Will any difficulty arise from the fact that it is proposed in Section 11 that there shall be divisions of the court? Will the deputy-chairman be regarded as a member of the court having regard to the wording of sub-section (2) of Section 10?
Section 12 (2) reads:—
"The deputy-chairman shall, in the absence of the chairman, act in his place and references in this Act to the chairman shall be construed as including references to the deputy chairman so acting."
That does not meet the point raised by Senator Mrs. Concannon.
I will have the point examined.
Section 10 put and agreed to.
I move amendment No. 23:—
In paragraph (b), after the word "it" in line 15, to add the words "provided that matters referred to the court under section 33 of this Act and matters involving interpretation or precedent must be considered by the whole court".
Where matters involve the interpretation of questions that would be considered by the whole court, rather than by part of the court, referred to in other sections, it would be an extraordinary situation if members of the court appeared to be divided amongst themselves. Where interpretation has to be dealt with, we feel that the whole court should assume responsibility. It could happen that two sections of the court might give different interpretations and, in order to avoid that possibility, this amendment has been put down.
If you are to have lawyers excluded and if you are to have people who will not be bound by precedent and who may not know the laws of interpretation, grammatical or legal, you are almost certain to have different decisions given by different divisions of the court. The members may have no training in the principles which should guide them in matters of interpretation and it is absolutely necessary, in the case of registered agreements, if you are to have uniformity, to have a decision by a full court.
I have considerable sympathy with the intention behind the amendment but I think that the matter is one which can be safely left to the chairman. No sensible person will dispute the desirability of avoiding the possibility of conflicting decisions being given by two divisions of the court. If we were to insert the amendment in the Bill, we should create a situation in which, one of the members being ill for a period, the court could not decide these questions at all. In the case of such a Bill as this, I think that it is far better to rely on the common-sense of the chairman to endeavour to arrange that the principle of the amendment will be acted upon save in exceptional circumstances—where, for instance, a decision must be given on a particular question of interpretation and the whole court cannot be assembled because of the illness, or absence from some other cause, of an individual member. The proposal in the Bill permitting a smaller court than five to act is not intended merely to facilitate the division of the court into two parts but to meet the possibility of a member of the court not being available, through illness or other cause.
The aim of this amendment may not be perfectly clear. It is intended to be an amendment to Section 11 and to be tacked on to the provision for a second division of the court. We can provide that this matter cannot be delegated to a second division——
Perhaps the matter is better dealt with in amendment No. 31.
That is a different point.
This matter arises on Section 33 and it is on that section the main discussion will take place. A number of people here and outside have grave doubts as to whether Section 33 is within the Constitution. I am assuming that it is within the Constitution. If it is to remain in this Bill, it seems to me that you must have certain precedents gradually set up and the maximum amount of uniformity. There ought to be some indication that this will not be one of the matters which will be allotted to one of the divisions of the court, more or less at the discretion of the chairman from time to time. One week he might give a particular class of work to one division and another week another class of work. I am not saying that he would do that, but he can change the work from time to time. Assuming that this provision is to remain in the Bill, it seems to some of us that decisions which will have a bearing on decisions in a court of law should be arrived at with as much uniformity as possible by the largest possible court. Possibly, this would affect Section 57 as well as Section 33.
In practice, this section, providing for the division of the court into two parts, may never be utilised. It is a precaution against the possibility of such a rush of business to the court that decisions would be delayed. It is only where the chairman thinks that the speedy dispatch of business requires a division of the court that the section will be operated. Ordinarily, the full court of five members will meet. There is the possibility that the full court will not be able to meet by reason of the illness of one of the members, in which circumstance it is necessary to provide that, if it meets, it will be a court of three. We could not have an unbalanced court of two employers' members and one workers' member or two workers' members and one employers' member. It is to be assumed that the chairman will be as much alive as we are to the desirability of maintaining uniformity of interpretation in the case of registered agreements and to establishing precedents and adhering to precedents and will so regulate the business of the court as to achieve those ends. The practical difficulty of putting in such words as are suggested here is that, if we require that a court of five members must deal with every question of interpretation or application of a registered agreement, there may be need for an urgent decision which cannot be given by reason of the illness or absence of one of the members.
These are matters for which you cannot provide completely in legislation. One must assume that the chairman of the court will be a sensible person and will be very deeply concerned to establish the right precedents and the right method of working. Consequently, he will be alive to the importance of operating the court in the manner which is regarded by us as desirable.
Amendment, by leave, withdrawn.
I move amendment No. 24:—
In page 7, after paragraph (c), in line 19, to insert the following words, "and the provisions of this Act shall mutatis mutandis, have effect accordingly”.
I put down this amendment because I have some doubt whether the section as it stands is complete. The relevant paragraph is paragraph (c) which states: "each division shall, for the purpose of the business so assigned to it, have all the powers of the court and the chairman of the division shall have all the powers of the chairman". That relates to powers but there are other matters than powers involved. Section 17 states that the decision of the court shall be final. There is no appeal on any matter within its jurisdiction. That, obviously, refers to a court of five persons and not to the divisional court. There is a distinction between the court contemplated in Section 11 and the court provided for in Section 20. Section 20 refers to the case in which the chairman considers that, for some reason, three members should constitute the court. As the Minister pointed out, one of the members may be ill. If he were an employers' member, the chairman might consider it desirable to stand down a workers' member. It might be that, if a member had an interest in the matter in dispute, the chairman would stand him down and would also stand down his opposite number. Under Section 20, that is the court—the court from which two members have been excluded. Under Section 11, we are dealing not with a court from which members have been excluded but with the divisional court which may be presided over by the deputy chairman or chairman. There are two courts sitting concurrently. Let us assume that a dispute arises in Cork and another dispute in Dublin. It is necessary that these two disputes should be investigated immediately. Two divisional courts are established. One investigates the Dublin dispute and the other the Cork dispute. Both are divisional courts, having the same scale of influence and authority. A decision is given.
I am wondering whether Section 17 would cover a decision of that kind or not, that is to say, whether it forbids an appeal from a decision of the divisional court. I am satisfied it prevents an appeal from a decision of the reduced court of three members but I am in great doubt as to whether it does in fact prevent an appeal from a decision of the divisional court.
There is a provision in the Bill for the appointment of assessors and I have been wondering whether the provision would cover the appointment of assessors in the case of a divisional court. A question also arises on Section 70, which provides for a reference of disputes to arbitration. In this case, with the consent of the parties, a dispute may be referred to the arbitration of one or more persons. I take it that means persons outside the court, because it provides later that the matter may be referred to the court itself for arbitration. I take it again it is a court of five. If the Minister is satisfied that my argument is unfounded and that the provisions of Section 11 are adequate, I am satisfied. I have not put down the amendment in order to press it but merely to raise these points so that if there is any doubt it may be cleared up.
It is intended that each division will have all the power and authority of the court. It is considered that the wording of sub-paragraph (c) is ample to provide that but I will have the point examined again.
I think this sub-paragraph requires to be redrafted. It provides as follows: "each division shall, for the purpose of the business so assigned to it, have all the powers of the court". That is all right so far as it goes but then it provides, "and the chairman of the division shall have all the powers of the chairman". If read disjunctively, that confers on the chairman of the division all the powers of the chairman of the court, which is not intended. It is only intended to confer on the chairman of the division all the powers of the chairman of the court merely for the purpose of the business assigned to the division. Therefore, I would suggest that it might be redrafted as follows, that is, "for the purpose of the business so assigned to the division such division shall have all the powers of the court and the chairman of such division shall have all the powers of the chairman," that is, merely for the purpose of the business assigned to each division, the chairman of the division shall have all the powers of the chairman of the court but only for such purpose.
I shall have the suggestion examined.
And perhaps the Minister would add: "and the decision shall be the decision of the court."
Amendment, by leave, withdrawn.
I move amendment No. 25:—
At the end of the section to insert the following new sub-section:—
() The quorum for a meeting or sitting of a divisional court appointed under this section shall be three.
This raises a question of the quorum of a divisional court. I have been endeavouring to ascertain whether the provisions of Section 20 are clear in regard to the divisional court. I have some doubt as to whether they are or not. Again I feel a distinction must be made between the court contemplated by Section 20 and the court contemplated by Section 11. That, of course, is adverted to in the first paragraph of Section 20 which provides that subject to Section 11 of this Act and sub-section (2) of this section, the quorum for a meeting or sitting of the court shall be five, unless the number is reduced to three in accordance with the provisions of sub-section (2), but at no point, even in Section 20, is it made clear what shall be the quorum of the divisional court of three.
I think the effect of not defining any other quorum is to make the quorum all the members of the division.
If the Minister is satisfied, I am satisfied. I draw attention to it because it seems to me that where as in fact the Bill says the quorum of a court is five, with the exceptions mentioned, it does not say what is a quorum in Section 11.
I will have the point examined.
Amendment, by leave, withdrawn.
Section 11 agreed to.
Amendment No. 26 is consequential on No. 11.
Amendment No. 26 not moved.
I move amendment No. 27:
To delete sub-section (4).
I am in some doubt about the provisions regarding the deputy chairman. Senator Mrs. Concannon has already referred to the fact that in the section providing for the establishment of a court the deputy chairman is not included as a member of the court. In sub-section (4) of Section 12 there is a new provision regarding the remuneration of the deputy chairman which, in my opinion, is unnecessary. It distinguishes this section from the provisions of Section 10. Section 10, sub-section (3) says: "the chairman shall be appointed by the Minister and shall hold office on such terms as shall be fixed by the Minister when appointing him." Section 12, sub-section (1) provides, "the Minister shall appoint a deputy for the chairman who shall hold office on such terms as shall be fixed by the Minister when appointing him." These two provisions seem adequate, they are similar, and it does not seem to me that there is any reason to put in sub-section (4).
If the Deputy will look at sub-section (8) of Section 10, that is the sub-section that gives authority for the payment of remuneration of the chairman.
I agree, but in this case it is provision for the payment by fees.
The difference is that the deputy chairman may be remunerated by fee instead of by fixed remuneration. The practice, for example, in the remuneration of the chairman of the Wages Tribunal under the Emergency Powers Order was to pay by fees rather than by fixed salary and as the work falling upon the deputy chairman cannot be foreseen at this stage, provision is made for the payment to him of fees rather than remuneration at a fixed salary.
It clearly marks out the deputy chairman beyond the other members of the court.
The chairman will be permanent; four of the members will be permanent and the deputy chairman will be taken up from his job. Let us say he is a solicitor or some other professional man. He is taken away from his work for a particular day. I do not know whether that is a good arrangement or not.
It may not be but, on on the other hand, it is difficult to foresee to what extent the services of the deputy chairman will be required other than to provide for annual holidays for the chairman. It may be that Section 11 will never be utilised, that the division of the court may never be necessary, and that the deputy chairman will only be required during the illness or absence of the chairman. In such circumstances it would be undesirable to provide for payment of a fixed salary. If practice shows that the wholetime services of a deputy are required for a chairman, then we will have to amend the legislation but at the moment we merely contemplate the circumstances in which a deputy may have to be appointed for a limited period and will be remunerated by fee fixed for that period.
Amendment, by leave, withdrawn.
Sections 12 to 14, inclusive, agreed to.
Question proposed: "That Section 15 stand part of the Bill."
Section 15 provides:—
"(1) the headquarters of the court shall be at Dublin, but sitting of the court may be held elsewhere in the State.
(2) the court may designate suitable places outside Dublin at which documents for the court may be lodged."
It would appear as if the documents would have to be lodged outside Dublin. I am sure that is not the intention. "May be lodged temporarily", I assume, is what is intended or, "while the court is sitting outside Dublin"
What is intended is that if a dispute breaks out in Limerick there should be some place in Limerick to which notification of that dispute may be given and where the services of a conciliation officer will be immediately available to endeavour to settle the issue and only bring it to court if conciliation should fail.
Surely the point is that the present wording may exclude the possibility of allowing them to be lodged in Dublin.
"Suitable places, in addition to Dublin."
I will have the wording examined.
Question put and agreed to.
Question proposed: "That Section 16 stand part of the Bill."
As I said on the last occasion, I feel keenly that probably the most important official of the whole machinery will be the person who will be in charge, the principal conciliation officer. I take it from what the Minister has just said that there will be conciliation officers in different parts of the country, in Cork, Limerick and other centres. Much of the success of this court will depend on the person appointed as chief conciliation officer and I would like very much to see a reference to a "chief conciliation officer" rather than merely to a "conciliation officer." The status which the reference would confer on the person appointed, indicating that there was an organisation and that he was the head of it, would have a very big influence on his relations with employers and workers. I do not want to stress it beyond drawing attention to the psychological effect it would have. Perhaps the Minister would consider it between now and the Report Stage.
Yes. It would not be necessary to have statutory provision for that purpose.
I am thinking of the psychological effect of having a statutory provision designating a person as "chief conciliation officer."
Question put and agreed to.
I move amendment No. 28:—
In page 8, line 3, after the word "court" to insert the words "or of a division thereof".
That is the same point. I do not think it is necessary but I will have it examined.
Amendment, by leave, withdrawn.
Sections 17, 18 and 19 agreed to.
Amendments Nos. 29 and 30 not moved.
I move amendment No. 31:—
Before sub-section (3), in page 8, to insert the following new sub-section:—
(3) No direction shall be given by the chairman under sub-section (2) of this section in relation to any matter arising under Sections 32, 33, 57, 58 or 77 of this Act.
This is the point I referred to a moment ago. The chairman is authorised to stand-down certain members of the court, in certain circumstances. It is left to his discretion—which I have no doubt he will use in a proper manner—as to the kind of case in which the court will be reduced from five to three. However, we ought to take precautions to see that this power will not extend to certain circumstances. The sections I have mentioned—32, 33, 57, 58 and 77—are sections in which not merely is precedent established but penalties are imposed. In Section 32, for instance, the court may give a direction to an employers' organisation or a workers' organisation and failure to comply with it involves a very substantial penalty. On conviction before a District Court, an individual or a firm may be liable to a penalty of £100 and £10 for each day during which the offence continues. That kind of case should be decided by the court of five and not by a smaller court. If it is a case of one member being absent through illness, the matter might await his presence, as it is not one which should be rushed as it is one of tremendous importance in its implications.
In Section 33, we are dealing with determinations of the meaning of collective agreements, not merely at the request of one of the parties but at the request of a court of law, where a court of law in which proceedings are introduced refers an agreement to the labour court for interpretation.
That is the kind of case in which the determination should be given by the full court. The same point applies in Section 57. Section 77 also carries penalties, as in Section 32. I feel that we should include in the Statute a provision which prevents the chairman from reducing the court for the purpose of these sections from five to three.
The proposal in Section 20 to enable the chairman to reduce the court from five to three is to deal with the possibility of a member being absent through illness or a member being in some way personally interested in the case and, consequently, not desiring to act. If we accepted this amendment, the effect would be that, in circumstances where a member was ill or unwilling to act because of some personal interest in the business, the court could not decide at all on the matters to which the amendment relates—the enforcement of a registered agreement, the interpretation of a registered agreement, the determination of a standard wage, the ordering of an employer to observe a recorded wage order or cases of assisting a trade union to maintain a strike, contrary to an order. These are all matters in which it is desirable to have the possibility of a prompt decision by the court on any matters that may come up.
Certainly, in the first of these matters, namely, the enforcement of a registered agreement, it is undesirable that the situation should arise where somebody reporting to the court that a registered agreement was being broken would have to be told: "The court cannot act upon it, as one of the members is ill and we have not got the full team here to deal with it." The intention is that ordinarily the court will consist of five members, but we must make provision against the possibility of one of the members not being able to act for any reason. In the case of the High Court or the Supreme Court, there are separate independent judges and the absence through illness of any one of them does not necessarily prevent the court from functioning. We do not want to create a situation where the absence through illness of a member would prevent the court from functioning. I think it is undesirable to provide that the full court must be present or the court cannot act on these matters, which would be the effect of the amendment. We must endeavour to ensure that, in all circumstances, the court can act on the matters brought before it.
On the question of the interpretation of agreements, under Section 33, is it not reasonable to say that that matter might be reserved for a full court?
Even in that case, there may be need for urgency, or there may be some reason why one member of the court should not act. If the section remains as it stands and proceedings in a court of law are stopped until an authoritative interpretation is received from the labour court, it would be undesirable that the labour court should be unable to give that interpretion, because of the illness of one of the members.
In these circumstances, I think it is clear that we must have some procedure by which the court can continue to act, even if one member of it is ill.
Amendment, by leave, withdrawn.
Amendments 32, 33, 34, 35 and 36 not moved.
I move amendment No. 37:—
In sub-section (6), to delete all words after the word "solicitor" in line 4 to the end of the sub-section.
I intend to be very short on this amendment. Sub-section (6) provides that rules made under it may provide for the cases in which persons may appear before the court by counsel or solicitor, and that, except as so provided, no person shall be entitled to appear by counsel or solicitor before the court. I am seeking to delete all the words after the word "solicitor" where it is first mentioned. I want to make it perfectly clear that the amendment does not in any way suggest that the court should make it mandatory under its rules that in any case that comes before it the parties must be represented by counsel or solicitor. I think it would be very wrong that this particular type of procedure should necessarily be dealt with by counsel or solicitor. I do suggest, however, that there should be a permissive right for a person to be represented by counsel or solicitor. I am thinking particularly of the case of a very large employer who perhaps would not be able to reason his case before the court. I can imagine plenty of employers who, while being extremely good at carrying out their own executive business, would quail at the thought of having to stand up before a labour court and argue a case. The Minister can well appreciate that there are plenty of such people who would flop if they had to stand up in court and conduct a case. I think it would be very undesirable if there were any provision in the Bill by virtue of which such persons would be prevented from having a spokesman to act for them.
I will go further and say that, I think, in 99 cases out of 100 trade union representatives will always be able to put their case very much better before this court than a solicitor or counsel, because they will know the intricate workings of it. I can, however, imagine cases where a small employer might like to be represented not by solicitor or counsel but by his accountant. I am not quite certain as to whether, under the procedure outlined in the Bill, he could be so represented. I ask the Minister seriously to consider the position that is being created under this sub-section. If one takes the case of the small employer and the big employer, an unfair burden is clearly being placed on the small employer for the reason that the very big employer will probably be represented by the spokesman for the Federation of Employers. He will also be at a disadvantage so far as the trade union representatives are concerned because they are used to this type of procedure and will be quite at home before the court. Therefore, I say that the small employer will be at a very distinct disadvantage unless he has someone to represent him. I think that he should have the right to be represented not only by a solicitor or counsel but by his accountant. Otherwise, I can see distinct cases of hardship arising.
The Minister in the course of his official functions, has the task of attending a considerable number of dinners. After the people who have been chosen to make the chief speeches have finished, it occasionally happens that somebody has to be pushed to his feet unexpectedly and willy-nilly. That person may be a small employer. I ask the Minister to reflect on the kind of speech that he has heard from that kind of person, and say if it is fair to throw him before the labour court, with his complete incapacity for expressing any kind of view or opinion, any logical thought, no matter how excellent an employer or how excellent a businessman he is.
I rise to support the amendment. The sub-section seems to me to be an extraordinary one to put into the Bill—at least the words that the amendment deals with. As I understand it, solicitor and counsel have the right to appear in certain courts such as the District Court, the Circuit Court, the High Court or the Land Commission Court. I do not think they have any right to appear in any other court except as a matter of grace. If that be the case, the court can always refuse to hear counsel or solicitor.
I remember that, in the days of the republican courts, we had very fine courts. Excellent decisions were given in them. One of the reasons, I think, for that was that a certain practice grew up amongst the counsel and solicitors who appeared in them. I know this happened in our county. We met beforehand and agreed that we would state the law as it existed. We agreed that no man would make a point of law that was bad. The result was that we always agreed on the law, so that all the arbitration court had to do was to decide on the facts and apply the law as we said it was. In that way, splendid decisions were given. These arbitration courts produced this result: that people who had been fighting previously for years, some of them for generations, came into those courts. They did not do the cases themselves, but got them done through a solicitor. They were done in such a way, and these arbitration courts acted in such a manner that the litigants concerned generally shook hands, went home good friends and remained good friends.
That is what I believe will happen in this labour court if cases are done in that way. I can well understand that, in the case of this labour court, if there are no solicitors or barristers engaged—men who would take a disinterested view of the cases coming before the court—you will have employers and employees exchanging words across the court, saying things that ought not to be said and putting their case in a way that it ought not to be put and, possibly, losing sight of the important points at issue. Senator Sweetman said he could very well understand an employer not being very well able to put his case before the court. I understand that in the time of the old industrial court it very often happened that labourers came into it and put their cases so badly that they were told to go home, to consider the point at issue and have it put before the court in a proper way. There are labour representatives members of the Oireachtas who are very fine speakers, but they may not be selected by the trade unions to put cases before this court. It may turn out that it is the chairman, or the secretary, of a trade union down the country who will be selected, and he may lose sight of the important points that should be put before the court.
The case may be bungled and important matters may be lost sight of. Ill-feeling may be engendered and other things may happen that would be very unfortunate and may not tend to the peace of the community.
The sub-section provides that rules shall be drawn up and that these rules shall provide for the cases in which persons may appear before the court by counsel or solicitor. If there is any omission from these rules affecting a particular case, the court will have no option; they will have to refuse to hear a solicitor or counsel no matter how much the trade unions or the employers may wish to be represented by counsel or solicitors.
I think it is an unfortunate provision and I would strongly recommend that the words be deleted from the section. I do not think their deletion would tend in any way to weaken the rules of the court. After all, we are all employers to a certain extent. We employ labour and I do not think the labour unions should try to refuse us the right to offer our labour in this market.
Whatever may be the merits of the section and the amendment, I think it can be said that there is a dislike on the part of trade unions to admitting professional advocates into the labour court. That may be wise or unwise but it is a state of mind with which you have to contend. I have some doubt myself as to whether it is wise to make provision for the admission of professional advocates in this case. I had experience of a tribunal under the Industrial Courts Act when the law was precisely the same. Section 9 of the Act has a proviso relating to this point which is exactly the same as that in the Bill. It says that provision shall be made by rules under which persons may appear by counsel or solicitor in proceedings under the Act and that, except as provided by these rules, no person shall be entitled to appear in any such proceedings by counsel or solicitor. Actually in the first court set up in this country under that Act, provision was made for appearance by counsel and solicitors. A distinguished judge was the chairman of the proceedings and he expressed the view that there were only two persons in the court who understood the proceedings and they did not include any of the professional gentlemen in court.
I think it can be said that if a case is debated by employers and workers, or, as is more likely, by the officials of the unions of the employers or workers, these people are much more likely to deal with the facts as they are and the court is more likely to get a statement of fact rather than an argument which has a technical basis. In the long run that is going to be more satisfactory. One can imagine a trade union being represented at a court of this kind by a secretary or official who had opposed to him a solicitor or counsel representing an employer. The official might feel after he went home that he had not got a fair deal because the professional man had dominated the court, or feel that the very fact that the other man had a professional legal training gave him a dominating influence on the court. That might not be true, but that is the feeling which would exist, and if such a feeling existed, it would prevent people going to the court at all.
There is a provision in the Bill for the admission of solicitor and counsel on certain occasions. The rules of the labour court may permit the attendance of solicitors and counsel. In my view, these rules should provide that, in certain kinds of cases, there should be professional representation. I think that in cases under Section 33, where you are asking the court to pronounce judgment on the interpretation of an agreement, that should be argued professionally, as it will be argued elsewhere professionally. It is conceivable that in that kind of case the rules would permit solicitors and counsel to appear to represent the various parties. Normally, it is unlikely that there will be professional representation and I think that, generally speaking, it is undesirable that there should.
I feel after all that has been said I should put in a word on behalf of the inarticulate employers. I do not think that they are so numerous or so common as people think. I also think, however, that it is a pity to introduce this provision into the Bill, because it is liable to create a desire for something you cannot have. If you did not have any such provision in the Bill, in practice there would be very few solicitors employed and on very rare occasions would counsel be employed by either side, because in practical politics you would be worse off by employing professional men in most cases that would come before the court.
Now that conditions are changing so rapidly and that a situation is being created in which, not only most workers but a large proportion of employers, and, probably after a short time, most employers, will be represented by trade unions, the occasions will be very rare when it will be considered advantageous or desirable to employ solicitors for this work. But the way to make you want to have them is to say you cannot have them. I think there will be a grievance on that account and I think it is most unfortunate for that reason to introduce a provision of that kind. During the short limited experience which I had of appearing before an industrial court to represent employers, one section of Labour was represented by a solicitor and another smaller section by Senator Kyle and I really believe that Senator Kyle and I did better than the solicitor.
I support Senator Sweetman's amendment for the purpose of calling attention once more to what I may call an unconstitutional use of the word "court" in this Bill. I submit that it is contrary and repugnant to the Constitution to call this tribunal composed of laymen a court. Article 34 of the Constitution deals with the courts. It says:—
"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and save in such special and limited cases as may be prescribed by law shall be administered in public."
Sub-Article (2) of Article 34 says:—
"The courts shall comprise courts of first instance and a court of final appeal."
Then it proceeds to deal with the High Court and the courts of local and limited jurisdiction. In Article 37 provision is made for the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters—
"by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution."
That provides for the exercise of certain limited functions and powers of a judicial nature.
But it does not entitle such persons to call themselves a court. I submit that if a body of people set themselves up and style themselves as a court of industry, it would be unconstitutional and probably an offence.
What about the midnight court?
You may have something called a "Court Laundry" or something like that. It should be noted that in the Constitution a distinction is drawn between courts and tribunals. Article 38 (3) provides as follows:—
"Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order."
It further provides:
"The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law."
That Article of the Constitution empowers the setting up of what is called the special court composed of members of the Defences Forces. But that is the only case in which any body calling itself a court can be set up. The Article proceeds further and, in sub-Article 4 sets out:
"1º Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law and also to deal with a state of war or armed rebellion."
There the tribunal is not styled a a court; it is called a tribunal simplicitus. The whole trouble has arisen by reason of the vaulting ambition of some person to have this glorified arbitration tribunal, presided over by an umpire, styled a court, and set up in competition with the courts established by the Constitution. I say it is a usurpation of the constitutional rights of the people that a lay tribunal or arbitration court to deal with disputes between limited sections of the people, employers and workers, should call itself a court, whereas the courts set up by the Constitution deal with all classes of the community. Therefore, a tribunal for settling internal differences should not style itself a court. I say that that should not be embodied in legislation made by the Oireachtas, having regard to the provisions of the Constitution.
This sub-section contains what I might call a gratuitous insult to the courts set up by the Constitution. It provides that rules may be drawn up to exclude solicitors and counsel. We have been told that the tribunal will not be composed of lawyers, or that the chairman will not be a lawyer. That non-legal body is empowered under this Bill to make rules providing when and where and in what cases counsel or solicitors may appear before them. That body, having power to draw up rules, not having any professional training and not knowing when a case requires the assistance of counsel or solicitor, are therefore, so to speak, shooting in the dark with the object, at the behest of the trade unions, of excluding solicitors and counsel who are quite as much entitled to earn their living at their profession as any trade unionist. I say that if a person appearing before a court desires the assistance of a solicitor and counsel, he should not be deprived by law of his right to have such professional assistance.
Senator Foran has stated that he has an objection to paying counsel. Trade union workers think that nobody is entitled to live but themselves. It is an extraordinary turn of the tide. When people who call themselves the depressed classes get any power they always seek to walk upon the people who have all the time earned their living by the sweat of their brow.
It is the oldest trade union in the world.
And the closest. I think Senator Duffy emphasised an important point. This is not a new provision. It is taken from the Industrial Courts Act.
That Act was enacted in 1919 before our Constitution was brought in. Our Constitution was enacted in 1937 and, therefore, the Industrial Court should not be called a court under the Constitution.
It is called the Industrial Courts Act and the tribunals set up under it were called courts and functioned as courts under that title since the Constitution was enacted and had power to make rules excluding solicitors and counsel from appearing before them.
Since the Constitution was passed the word "court" means a court provided by the Constitution and, therefore, the Industrial Courts Act of 1919 would be repugnant to our Constitution, and I am sure the courts would so hold.
A burglar who has not been caught yet.
It may be so. I am advised that there is no constitutional objection to calling this a court. I think it is desirable that it should be called a court and have power to exclude counsel or solicitors from appearing before it, the same as the Industrial Court established under the Industrial Courts Act, 1919, had.
Had that Industrial Court power to inflict penalties?
This court has no power to inflict penalties. The argument in favour of excluding counsel or solicitors except in special cases is that trade unions of workers will feel that, if employers resort to the use of counsel and solicitor, they will be compelled to do so also and will be involved in expenditure beyond their resources if cases come frequently before the court and will be deterred from using the court by the fear of such expenditure. I want the Seanad to remember how the machinery of this Bill will work. In the first place, there will be negotiation. Before an agreement is presented for registration, or before any of the various sections of the Bill are availed of, there will, as a rule, be negotiation in which the parties will be the officers of the trade union of workers concerned and, presumably, the officers of the trade union of employers concerned, or the employers concerned. When matters come before the court, the trade union officials who have been dealing with these matters in the past, who have been selected by their members because of competence to deal with them, feel that they can make their case better than any counsel or solicitor employed for the purpose. Experience in the past has shown that to be so.
It is true that one of the effects of the establishment of this court and the growth of the utilisation of this court will be to force a number of employers who are not now in employers' organisations to become members of employers' organisations and, to have their cases presented to the court through the officers of these organisations. I think that will be a good development. I think it is desirable that there should be that organisation amongst employers and effective means to present an employer's point of view to the court when the court has a matter under consideration in relation to which that point of view should be presented.
I was pressed very strongly in framing the Bill to include this clause, particularly by the organisation representative of trade union workers who felt that it is an important consideration for them that they should ordinarly come to the court through their trade union secretaries or other officials, as they came to negotiations in the past when conferences were held under the auspices of the Department of Industry and Commerce or other wise. They should be entitled to make their case without the risk of being forced into the position of employing counsel or solicitors. It is not a case where the union will have the choice of employing counsel. They feel that if employers' organisations resort to utilising counsel who may raise legal points, they in turn will be forced to do the same and have urged that we should insert in the Bill a similar provision to that contained in the Act of 1919.
The court will have to allow counsel to appear before them in certain cases. I have no doubt they will make sensible rules and we must assume that the court will proceed in a common-sense manner and will not deny representation by solicitors or counsel where they think that the working of the court will be facilitated thereby. I am advised that unless the words appear as they do in the Bill, the court would not have the power to prevent representation by a solicitor or counsel; at least, there would be a doubt, and in order to make the position clear from the point of view of the law and of those who will be in the near future deciding whether they will use the court, it is preferable that these words should stay in the Bill.
I must confess that I am not convinced in any way by the Minister, except to this extent. He used the argument earlier that it is no use putting into the Bill anything to which the trade unions object. That is the only argument the Minister has used that has any force. If we were to take that line about everything, the proper procedure would be to bring in a one-section Bill proposing that the Minister shall set up a labour tribunal, having agreed to the terms of reference, etc., with the appropriate trade unions. We must take cognisance of the fact that we are undertaking a certain responsibility in the framing of this measure and that it is not, though it is an important point to consider, the end of all consideration to say that the trade unions do not like it.
As this sub-section is phrased, it can impose very great hardship. I can think of many cases where hardship would be imposed. I am not at all clear, if a trade union wanted to appoint a new secretary who would appear before this court, or if the federated employers wanted to appoint a new secretary, whether the effect of this section will be to debar a counsel or solicitor from being appointed. That is a grossly unfair exclusion and I think that will be the case under this section. I think there is no case for excluding counsel or solicitors from being officers of a trade union.
I do not think there is any real substance in the suggestion that this will force trade unions into costly semi-litigation. In 99 cases out of 100 dealing with the type of negotiation envisaged, a solicitor would not deal with it as well as a trade union official. I have dealt with some almost similar cases before the Wages Tribunal. I am aware of the fact that I was never able to deal with the matter as well as the representative of the trade union who knew the ins and outs of the particular trade in a way I could not possibly hope to know in making out a brief before going into the tribunal. There was always an advantage on the side of the trade union representative.
I am not now talking about the general question of the interpretation of the law, but there are individual cases where it would impose grave hardship on the individual if he were not allowed to be represented, if he felt that was desirable. Unless the Minister feels that he can safely say that the court will provide not merely that counsel and solicitors can appear in a general type of case, but that they can appear in an individual case on the application of the individual, I feel that it is my responsibility to press this amendment.
I am not forecasting what the court will do, but it is my assumption that they will make reasonable and sensible rules.
It is possible that a trade union secretary may have been called to the Bar. Barristers come from all kinds of strange places and are found in all kinds of strange places. It is a useful thing to know a little of the law; at least, it gives one a knowledge of one's limitations. That is all I claim for it. What would the position be if a trade union secretary were a barrister?
I think there would be no question that the court would refuse to hear him. If he came as the secretary of the trade union, he would certainly be heard.
Surely employers would be precluded from being represented by Senator Sir John Keane, even if they wanted to?
I doubt very much if the rules of the court would provide for that.
It would depend upon whether they are drafted by a lawyer or not.
Would the Minister think of putting in the words "except with the consent of the court"?
That is what the sub-section means.
Will it not be better to follow the Industrial Court Act and give power to exclude in certain cases?
They have that power as a matter of course.
In other words, the rules would provide that they would not be represented except in a certain type of case.
The section must give the court power to say that no person will appear except in accordance with the rules made by that court. If you do not put the sub-section in that form the court cannot deny a person that right. The section proposes to give the court that power.
I am inclined to think that it would prevent Senator Sir John Keane from representing the employers. The court has power to make its own rules and to regulate by whom and how persons may appear. I have no objection to the court excluding solicitors or counsel, as I have no doubt it would do in many cases, but, as the section is now, you are creating a grievance, and I think you will hear a lot more about it.
That is the form in which it must appear. The law as we pass it must say that, except as provided for in the rules of the court, a person shall not be entitled to be represented by counsel or solicitor.
Suppose the court says: "We forgot in this case", what is the position?
The court can alter its rules as often as it likes.
At that particular sitting, they cannot alter the rules, unless they adjourn the case. Would the Minister not agree to put the words "except with the consent of the court"?
I do not think the Minister has quite got the point of Senator Douglas's suggestion. As sub-section (6) is phrased, the court is entitled to say: "For types of cases A, B, C and D, you may bring solicitor and counsel, but not for any other type of case". The suggestion now put forward, which I think would meet my point of view to a very large extent, is that the court should have the power to say: "For cases A, B, C and D, you shall not appear by counsel, but, for every other, you may". I think that reversal would enable the court to keep itself open for the unexpected type of case.
It is clearly intended that solicitors and counsel will not ordinarily appear before this court, that it will be a place where representatives of workers and employers will argue out their differences without legal technicalities. If we provide otherwise, we appear to be putting emphasis upon representation by counsel and solicitor. We want to make it quite clear that counsel and solicitor will not be employed in this court, except in such cases as the court may decide to hear them in, having made rules to that effect, but there is no limitation on the power of the court to make rules. The court can make whatever rules it thinks fit and those rules might give the right of representation by solicitor or counsel in the individual case merely on the ground that the court was satisfied that the person concerned could not adequately state his own case.
As so much emphasis has been laid on this point, it is important to stress that it is a well-known fact that the present secretary of the Federated Union of Employers is a barrister-at-law and it would be a tragic thing if he were excluded from this court.
I think it is so improbable that we need not consider it.
Since so much emphasis has been laid on the position of counsel, I must bring that specific case before the House, so that there will be no possible misunderstanding. Does not the position of that official as secretary of a trade union transcend his position as a barrister?
And he cannot possibly be excluded from this court.
By virtue of what section does it transcend his position as barrister?
I am pretty certain that the position is that the secretary of the Federated Union of Employers could not attend, unless a rule is made providing that he can attend.
Is it not reasonable to assume that such rule will be made?
Is it not absurd to provide that a secretary of a trade union, whether employers' or workers' trade union, could not attend unless the court made a special rule? There is something there which requires amendment. I appreciate what the Minister is getting at, but I think it is extremely unsatisfactory as it is.
Surely the position would be met by giving the court the necessary power by the insertion of the words I suggest: "except with the consent of the court".
The court has power to make whatever rules it thinks fit.
It may forget to make rules.
It can decide to make rules which will admit counsel and solicitor in every case.
According to Senator Duffy, it could make rules allowing for their appearance under Section 33, but under no other section.
I am not convinced by the Minister. I am afraid the Minister is being influenced by a certain type of advocacy, a certain type of opinion which regards it as good policy, as popular, to deride lawyers.
I think that is at the back of the whole thing. I dislike having to say that, but I say it quite seriously. I might also suggest that the exclusion of lawyers, the abolition of lawyers, was tried in another country and it was found after a very short time that they had to be brought back.
It is the position with regard to labour courts in a whole lot of countries.
It was the law of the country to which I refer. That country was Russia. There they tried to abolish all the lawyers, but they very soon found that they had to bring them back again.
If the position of a secretary of a trade union who is also a lawyer is in any doubt, I must urge the Minister to reconsider it.
There is no doubt about it.
We would not like his position to be dependent on a rule of the court. It is important to have the position of such a man on either side—it may be that trade unions of workers would employ solicitors as secretaries for the specific purpose of presenting their cases with inside knowledge—made clear, and the Minister might consider whether he could not introduce wording which would meet the case on Report Stage.
I think there is a doubt, as it is worded.
The probability is that rules will be made excluding counsel and solicitor in all cases. This section is an invitation to the court to make such rules.
Is the section not precisely the same, in fact, as Section 9 of the Industrial Courts Act? In that case solicitor and counsel appear before tribunals in this country. In the case of the tramway dispute in 1929, there was a bar of about eight.
The Committee divided: Tá, 10; Níl, 18.
- Baxter, Patrick F.
- Counihan, John J.
- Douglas, James G.
- Keane, Sir John.
- Moore, T.C. Kingsmill.
- O'Dea, Louis E.
- Ruane, Seán T.
- Ryan, Michael J.
- Summerfield, Frederick M.
- Sweetman, Gerard.
- Campbell, Seán P.
- Clarkin, Andrew S.
- Concannon, Helena.
- Crowley, Tadhg.
- Duffy, Luke J.
- Foran, Thomas.
- Hawkins, Frederick.
- Hearne, Michael.
- Honan, Thomas V.
- Johnston, Séamus.
- Kyle, Sam.
- McCabe, Dominick.
- McEllin, John E.
- O Buachalla, Liam.
- O'Callaghan, William.
- O'Reilly, Patrick.
- Quirke, William.
- Tunney, James.
Tellers:—Tá: Senators Baxter and Sweetman; Níl: Senators Hawkins and Hearne.
Amendment declared negatived.
As a result of an unholy alliance.
Section 20 agreed to.
I move amendment No. 38:—
In sub-section (3), to delete sub-paragraph (b) and substitute therefor a new sub-paragraph as follows:—
(b) being in attendance as a witness refuses to take an oath legally required by the court to be taken or to produce any document in his power or control which is relative to the matter before the court and which the court has legally required him to produce or to answer any relevant question to which the court may legally require an answer.
Under sub-section (3) of this section provision is being made in relation to the giving of evidence, and it is provided that a witness can be forced by the court to answer any question that he may be legally required to answer. If he does not do so he will be guilty of an offence. It seems to me that it would be quite legal to ask almost any kind of question, which might have no relation whatever to the matter before the court, seeing that this is not a court to be presided over by a judge. As the Minister has pointed out, it might be successful by virtue of irrelevance. It seems that if an employer, a trade union leader, or anybody else in a responsible position is asked a question, which he does not think fit to answer, he should only be guilty of an offence if a higher court is satisfied that it had relation to the matter under consideration.
The object of the amendment is to suggest that there should be some limit to questions. I am advised that the word "legally" there has a limit, but that in practice a man could be asked questions which had no relation to the dispute. Humorously it is suggested that a lawyer before the court could be asked when he had left off beating his clerk, and if he refused to answer he would be guilty of an offence. I am pretty sure we would all be guilty of an offence if we refused to answer such questions. I, as well as other employers, feel that there is a danger that the court would be injured, if certain persons desired to get information which had no relation to the dispute and that, not being a court of law, in the early years the court might not be in a position to restrict questions. Therefore, if a man refused to answer it should be left to the court to be satisfied that it was not relevant.
This amendment is intended to bring in that provision.
I consulted the Parliamentary draftsman and he is of opinion that the section as it stands, which is in standard form, gives sufficient protection to the witness, that the word "legally" ensures that the question the witness is asked or the document which he is requested to produce will be relevant to the issue before the court. Senator Douglas has not adverted to the fact that, if a witness is prosecuted, it will be in an ordinary court of law and that that ordinary court of law will have regard to custom and legal precedent before deciding that an offence has taken place. If the ordinary court is satisfied that the question the witness was asked was irrelevent or that the document, production of which was requested, had no bearing on the matter before the court, presumably it will decide that no offence has taken place.
The case I want to put before the Minister for his consideration is one of a witness brought before an ordinary court of law for having refused to answer a question before the labour court. The ordinary court will say: "We would not have allowed that question because it was irrelevant but it was quite legal for the chairman of the labour court to allow it".
Because there is no law governing the matter in relation to that court.
The words "legally required to be produced" constitute a safeguard.
I asked a couple of lawyers a question on this matter and they did not know of any Act which would apply to a new court or tribunal set up in this way which would prevent the putting of an irrelevant question. I have a genuine fear that a court of law will say that, if the question had been asked in that court, it would be regarded as irrelevant but that there is no such law governing the labour court and, therefore, that the question was quite legal.
On a point of order, I do not think that we passed Section 20 yet.
I put Section 20 while the Senator was engaged in conversation.
There is some slight confusion between "relevancy" and "legality." There are provisions of the law which say that certain questions may not be put. There is a provision, for instance, that a witness may not be asked, and, if asked, shall not be required to answer, any question which may involve his incriminating himself. There is provision in the standard law stating that a question may or may not be asked but the question whether a certain interrogation of a witness is relevant or not is a matter that can be decided only by the presiding judge. If the presiding judge says that the question is relevant, the witness can be compelled to answer it and would be so compelled. If there is a judge presiding, that is all right because the judge is, presumably, correct in his decision whether a question is relevant or not, but a lay chairman of the court will not know whether a question is legally relevant or not. If he says: "Such a question is relevant and you must answer it," I submit that the witness would be legally bound to answer it. An employer might be compelled to produce his books or any details as to his activities if the chairman ruled that it was relevant because it would be illegal for him to disobey the ruling, nor do I think any court subsequently would be in a position to decide whether it was relevant or not unless they went through the whole proceedings, because a question which might be irrelevant at the initiation of proceedings might become relevant in the course of the proceedings, according to the run of the earlier interrogations. In order to decide whether a question was or was not relevant, it would, probably, be necessary for the subsequent court which was trying the offence to go through the whole of the proceedings. It is most undesirable that a lay chairman, not trained in the science or law of evidence, should have power to make an employer produce a document or answer a question which, in fact, would not be relevant to the investigation and which might, conceivably, be asked by the representative on the labour court of an adverse interest with a view to ascertaining facts, quite unimportant for the purpose of the particular case being tried, but of considerable interest to the point of view which he represented. I think that Senator Douglas is right and I should like the Minister to consider the matter from that point of view.
As joint sponsor of this amendment, I am glad of the opportunity to speak, although Senator Kingsmill Moore has said a great deal of what I intended to say. The Minister must decide whether he will incorporate these few extra but all-important words in the section. I do not see any objection to their being included and I see many reasons why they should be included. We all hope for great things from this tribunal, but it will be composed of human beings. I feel that these words are necessary to protect each side appearing before the tribunal from being embarrassed by questions which, because of stress of human emotion, might be malicious. In the course of a hearing in which the issues at stake had provoked friction, in order to score a point—I presume the proceedings will be public—a very damaging question could be asked under the protection of the tribunal. Unless the words suggested, indicating that the questions must be relevant to the issue, are inserted, either side— workers or employers—could be subjected to questions which, because of their irrelevancy, should not be asked and which could be extremely embarrassing. If the person concerned is to be subject to penalties because he refuses to answer questions, we, at this stage, ought to take all precautions possible to ensure that the position to which I have referred will not arise. The Minister is being given his section substantially as it is, but with the addition of the words "relevant questions" and I know of no reason why he cannot agree to incorporate those words.
I am very glad that this question has been raised. It occurred to me in regard to the next section— Section 22—which provides that no matter can be published which is disclosed in evidence unless it could be obtained elsewhere. That is for the purpose of preserving the secrets of the evidence, but there is an old saying that, if two persons know a secret, it is no longer a secret.
Here we have five members of the court. You have representatives of labour and representatives of the employers present in court. There is no limitation under this Bill to the questions that can be asked. As Senator Kingsmill Moore said, any question may be relevant. Probably the court may think a question relevant and it is for the court to decide whether it is relevant or not. If there is no limitation to the questions that can be asked, then there is no reason why, say, a manufacturer might not be asked some trade secret, the divulging of which would ruin his business for ever. He might be asked had he discovered a secret process as a result of which he made so much in a particular year. He might have had a particular year of prosperity arising from his own foresight or knowledge or from the fact that he had made provisions that other people had not made. If it were discovered that he had been capable in a certain year or half-year of making a certain amount of money, that would cause unrest amongst labour, the extent of which it would be very hard to estimate and that particular employer would be put in the position that his opponents in the trade might get the process and ruin his business. That is the one danger I see in this very excellent Bill. It is an excellent Bill from every point of view and is calculated to prevent unrest in the labour world but there is that one danger that some information might be elicited in that way and it might ruin the particular employer or class of employers. That is a very important matter and I would ask the Minister to consider it and to put a limitation on the questions that may be asked. There is more than the word "relevant" and more than the word "legal" to be inserted. I would ask the Minister to consider it very carefully because Section 22 will be useless unless something is done to prevent evidence being elicited that might have the effect of ruining the business of a particular employer being a party to proceedings before the court.
There is nothing particularly new about the provision in the section. I want to make my position clear, in the event of a division being challenged. I would be bound to vote against the amendment. For 27 years we have had the same provision in the Industrial Courts Act. Part II of that Act contains precisely the same provision in effect as is in this Bill and that Part II has been used in this country. Sub-section (5) of Section 4 of the Industrial Courts Act, 1919, provides:—
"A court of inquiry may, if and to such extent as may be authorised by rules made under this section"—
rules made by themselves—
"by order require any person who appears to the court to have any knowledge of the subject matter of the inquiry to furnish, in writing or otherwise, such particulars in relation thereto as the court may require and, where necessary, to attend before the court and give evidence on oath, and the court may administer or authorise any person to administer an oath for that purpose."
All the provisions of this section are in the Act of 1919 and they have been used extensively in Great Britain and, to some extent, in this country. I do not want to be put in the position that it might be said that I voted against an amendment designed to prevent certain people from being put in a false position. I do not think they will be put in a false position. I have no reason to believe that a court established under this Bill will act with less discretion than a court established under the British Act of 1920. I refuse to believe that. A court which will be established under this Bill will act with discretion and will be competent to form a judgment as to what is a reasonable request in relation to the production of documents or the giving of evidence. I do not want to go into Section 22 at the moment—that will arise again—but I do want to make it clear that there is nothing new being asked for in this section and if our own legislation is examined it will be found that a somewhat similar provision is contained in the Prices Act, 1933. I remember distinctly having to be a party to the issue of a summons against a certain person who refused to give information in relation to the inquiry. The Prices Commission did not inflict penalties. The matter was dealt with in the ordinary courts. A person who refused to produce documents could be summoned before a court of summary jurisdiction, and in one case such a person was summoned and convicted, and very properly, in my opinion.
I support this amendment, really for the purpose of drawing attention to the necessity for some amendment of the section as it stands, so as to put some limitation upon the powers of this court with regard, for example, to the production of documents. Sub-section (3) of Section 21, to which the amendment refers, provides inter alia that if any person being in attendance as a witness refuses to take an oath, refuses to produce any document in his power or control legally required by the court to be produced by him, he shall be guilty of an offence. Sub-section (1) of Section 21 empowers the court to require any witness to produce to the court any document in his power or control. There is no limitation upon the documents which the court may compel the witness to produce. He may produce his cheque books, his bank books, his grandmother's will, even though it is not relevant to the matter before the court. Such a power is vested in the court to require the witness to produce any document and, therefore, a request to produce any and every document is what I call a legal request. He is legally required to do it and, therefore, he may be punished for not producing any document which the court asks him to produce or requires him to produce, whether it is relevant or not. There is nothing in this section which even puts some onus or duty upon the court of calling only for documents which are relevant to the proceedings before the court. Of course, the whole difficulty has arisen by reason of what I might call this juggling between the Industrial Courts Act, 1919, and the present Bill. Senator Duffy has referred the House to the provisions of the Act of 1919 as being somewhat similar to the provisions in this Bill. As far as I know, whenever Part II of the Industrial Courts Act, 1919, was put into operation here, it was presided over by a judge. I challenge contradiction. So that, to all intents and purposes, it was a court and a person who presides over a court is generally called a judge or a justice of some sort, but here we have a nondescript chairman presiding over a court. He is not a lawyer. He is supposed to know what is legally required by the court. In other words, he is supposed to be a lawyer and he is not to be a lawyer. Therefore, I would suggest that if this section is to be persisted in, at all events, there should be something in it to guide the chairman and the court as to their powers of calling for documents and examining witnesses and asking questions of those witnesses.
Of course, if a person refuses to take an oath legally required by the court to be taken there is no difficulty there. Sub-section (1) of Section 21 empowers the court to examine on oath the witnesses attending before it, and if a witness refuses, the position is quite clear. This is a different matter, where he is asked to produce documents which may or may not be relevant to the proceedings or where he may be asked to answer questions which may have no bearing whatsoever on the proceedings. These are cases where there should be some safeguard for the witnesses to save them as far as possible from the court. That is why I support the amendment.
First of all, I would ask the Minister a specific question. Will he point out to me by virtue of what portion of this Bill the presiding chairman will have the right to say at any time in regard to any question asked of any witness: "That is not relevant and we do not want to hear it"? I cannot find anything in the Bill which gives the presiding chairman the right to disallow a question as being irrelevant. Unless that right is given specifically, I do not think it can be implied merely by way of implication that such a procedure will be provided for by the rules. Secondly, I want to draw the attention of the House to the section of the Industrial Courts Act of 1919 to which Senator Duffy referred. It is entirely different to this section— it could not be more different. The sub-section provides—I am cutting out a certain amount of unnecessary verbiage—that a court of inquiry may by order require any person who appears to the court to have any knowledge of the subject matter of the inquiry to furnish in writing, etc., such particulars in relation thereto—in relation to the subject matter of the inquiry, therefore —and, where necessary, to attend and give evidence on oath. It is specifically restricted to matters in relation to the subject matter of the inquiry.
"Which, in the opinion of the court".
But that is not in the present Bill.
It is. Read the first words of the section.
It says: "For the purpose of any proceedings". That is not the same thing as the subject matter of the proceedings.
They would not be there at all but for the purpose of the proceedings.
It means nothing. It is quite clear that it does not mean restricting the witness to the subject matters of the proceedings.
It limits the power of the court in requiring a witness to answer a question for the purpose of the proceedings. He may not be asked for his grandmother's will, as has been suggested. I submit that some members of the House are using the term laymen as synonymous with half-wits.
That seems to me to be the only interpretation of the speeches made.
That is, of course, an aside by the Minister that should be and would much better be forgotten as quickly as it was made. The only other point is that I do not agree with the Minister's interpretation of the first line of Section 21. If it is merely left to the interpretation of Section 21, in a very short time the Minister will find that our interpretation is correct and that certiorari will solve the problem in an unhappy way. In regard to the provisions of the paragraph we are discussing, I want to point out that the situation as to the penalty must be dealt with in a way that the Minister does not visualise. I am a witness before this labour court; and I refuse to answer a question which was put to me, as I feel it is not at all relevant to the proceedings. Having refused to answer that question, I am prosecuted in an ordinary criminal court. That court cannot, on the wording of the section, consider whether the question was relevant or not. All it can consider is whether I answered it or did not answer it. If the ordinary criminal court is satisfied that I did not answer the question, then regardless as to whether the question was relevant or not, it must convict me. No doubt, after convicting me, it will consider the relevancy in ascertaining the amount of the penalty, but I submit it is grossly unfair that I should be put in the position of being under any conviction in the case.
This is not the first time that this type of question has come up for discussion on these lines. I consider it is unfair that a person should be put in the position of committing an offence and that it will be left afterwards for some one to say: "Though you did commit that offence, you were right to do so". That seems to be the Minister's reading of it.
It certainly is not my reading of it. At least, I do not recognise it as such.
It is the argument the Minister put up a moment ago, that the criminal court would discuss the relevancy. The court has no option to discuss the relevancy.
Our decision on a former amendment was wise, judging by this amendment. Laymen and not lawyers should deal with this. The whole question turns on relevancy. We must assume that the Minister will appoint as chairman a man who has at least normal common sense.
Would the Senator explain where "relevancy" appears in the section?
I would ask the movers of the amendment how much better off they would be if the amendment is passed? The entire matter will rest with the court, which will decide as to what is relevant and what is not. Therefore, we are beating the air. The industrialists will be no better off if the amendment is passed, so there is no substantial reason for any change whatever in the paragraph in the Bill.
In the first place, I want to say to Senator Ryan that there is nothing whatever in Part II of the 1919 Act requiring any member of the tribunal to be a judge.
I never said that. I said it had been the practice here, in putting that Part II into force, to appoint a judge.
I have knowledge of courts appointed in this country in which the chairman was not a judge. Secondly, with regard to the wording of the section, I would draw attention to Section 18 of the Control of Prices Act, 1932. There is a slight distinction between the two, but not in the main provisions of the two sections. That Section 18 (2) says:
"(2) If any person—
(a) on being duly summoned as a witness before the Commission makes default in attending, or
(b) being in attendance as a witness refuses to take an oath legally required by the Commission to be taken, or to produce any document in his power and control legally required by the Commission to be produced by him, or to answer any question to which the Commission may legally require an answer, or
(c) does any other thing which would, if the Commission were a Court of Justice, having power to commit for contempt of court, be contempt of such court,
the Commission may certify the offence of that person under their hands to the High Court and that court may, after such inquiry as it thinks proper to make, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the said court".
Now, word for word, the early part of that section is copied in the present Bill. There is nothing to distinguish one from the other except the reference in the Control of Prices Act to the issue of the certificate. This certificate will say that Mr. A was guilty of an offence which was equivalent to contempt of court. In a case of which I have some knowledge the person was brought before the High Court and punished on the certificate of the Prices Commission. I should add that none of the members of the Prices Commission, not even the chairman, was a lawyer. Therefore, I cannot see how, after an experience of 13 or 14 years, this question should arise in its present magnitude on this Bill.
We have heard a lot of talk about relevancy and legality. I do not think that touches the point that I am making which is that Senator Douglas's amendment would not help very much in this matter. It does not help us practically. My point is that the chairman is not given any discretion to refuse to allow a question to be put. I want to give him a discretion— not because I think he will be a half-wit; I presume he will be a man of great ability—to refuse to allow a question to be put even though it is relevant and legal, if it is calculated to injure the trade or business of any particular person, firm or company or is calculated to elicit information that may cause industrial unrest, or be the means of unveiling the secrets of a man's business or trade or even the names of his customers. If such information were given it might enable somebody else to take his customers from him. Under the Bill the chairman has not power to refuse to put questions of that character.
I suggest to the Minister that he should consider that. I know that under Section 22 it is contemplated that certain matters would be kept a secret, but they cannot be kept secret if they are divulged in court. I understand that what happens at arbitrations in the case of industrial disputes when that question sometimes arises is that the chairman of the tribunal asks that the books, documents or accounts be submitted to him privately, so that even the other members of the court will not see them.
The chairman will then inspect those documents and not make a disclosure of the contents. That cannot happen, I am afraid, under this Bill, and for this reason that there are five members of the court, so that every member would be entitled to object to the chairman doing that. Every member will be as much entitled as the chairman to hear every bit of evidence that is given, and for that reason all the books, documents and accounts will have to be produced to the entire court, if they are produced at all.
The Senator is taking the view that, because one person asks a question, the whole court agrees to that.
I am not submitting anything. What I am saying is that a discretion should be given to the chairman to disallow any question that he thinks may injure any party to the dispute, whether that party is a trade union, a manufacturer or a business man. He should have that power as well as the power—if he thinks it is necessary for the purpose of determining the matter at issue—of being able himself to examine the accounts. Perhaps he should get the latter power separately, apart from the court, on condition that he would keep the information secret, and so as to enable him to judge whether the evidence given by any particular person was truthful or untruthful. At the same time he should not be in a position to disclose facts which may relate to the trade or business of any particular person or firm. The disclosure of such secrets might be the means of smashing that business either immediately or in the future. I say that something more is required than what is provided in Section 22 to prevent the disclosure of secrets during the hearing of the case.
The Prices Commission carried out that sort of inquiry, and there was no objection to it.
Is it proper to suggest that because certain provisions were put into a Bill that was passed years ago that, therefore, they are right?
I must protest against this repeated citation of English statutes or Irish statutes passed years ago. "As it was in the beginning is now and ever and shall be" is perfectly all right in a prayer, but it would be a perfectly rotten system for us to follow. As a Legislature we are charged with the duty of trying to improve upon a formula which is bad, and which it is our business to alter and make perfectly clear. Let us hear no more about the 1919 Acts or about the prices tribunal. If, in some of those Acts, there was a bad section, it is our duty to improve it. It is entirely irrelevant to be quoting for us what appears in old Acts. Everybody appears to be getting so slave-minded about English Acts that I am beginning to think I am the only rebel left in Ireland.
I suggest that we should approach this as an entirely new question. If we can show by argument that there were flaws in previous legislation, then it is our duty to examine this legislation and put in safeguards against possible dangers that may arise in the future. Many of the provisions to be found in the Public Health Acts passed in the 70's are practically a dead letter to-day. Is it seriously suggested that we should accept them without question? As a layman, I have listened with a good deal of interest to this debate. I have a suggestion to make, even though it may not be a very good one. It appears to me that under this Bill you are going to hand over this court to a number of people who are certainly not qualified in law or in the application of the rules of evidence. That lack of knowledge may lead to the prosecution of witnesses, or of other parties who appear before this court, in one of the properly constituted courts of the land. Does the Minister object to the employment of professional skill in the direction of this court? If he does he should at least take steps to safeguard the public through the rules of court. I understand that this body cannot claim to be more than a collection of people, and that the chairman, so far as I can learn, will be utterly unqualified to draw up rules of court. Accordingly, protection should be afforded to everybody concerned by some control of the rules of court. Would it not be possible for the Minister to say that the rules of court must be submitted to him or to his legal advisers so that he can, if necessary, improve them and that they must be in such a form to afford reasonable protection and give some guarantee of what I call judicial decency?
It seems to me that all the matters referred to by Senator O'Dea will be covered by the rules made by the court for the regulation of its proceedings. That is what these rules will refer to. Proceeding on the assumption that the members of the court will have a modicum of intelligence, it may be assumed also that they will have regard to the matters referred to by the various Senators. They will have their own legal advisers. There is nothing in the Bill which debars a person with legal qualifications from membership of the court but even if the members of the court are not lawyers, they will have a court registrar who will be a lawyer and who will be the draftsman responsible for putting the rules upon which they decide into proper legal form. The main argument against the amendment is that it does not, as Senator Foran said, add one iota to the strength of the section. It does not alter its meaning in the slightest. Senator Kingsmill Moore objects to the quotation of sections from previous Acts but this section is in standard form. In the course of time, legislators have got various sections so rounded off and perfected by experience that it is thought desirable to maintain them in the form experience has justified. This section is in standard form. Experience in the framing and in the enforcement of other legislation has shown that this section is in the form which is necessary to establish that witnesses who refuse to answer questions which may be legally asked of them, or to produce documents which they may be legally required to produce, commit an offence. I could not follow Senator Ryan in his arguments that the court should not have power to ask questions of a witness or to require the production of documents in accordance with rules made by them in relation to proceedings before the court under the Act——
Not in relation to the proceedings but for the purpose of the proceedings. It may be quite irrelevant but still may be necessary for the purposes of the proceedings.
The court will decide whether it is relevant or not. If a witness says that a question is not relevant to the proceedings and that he will not answer it, the court will decide whether it is relevant or whether it requires an answer in order to enable it to arrive at a decision. Senator Sweetman I think is entirely wrong in his assumption as to what would happen in the case of a person who is tried for an offence under the section. The court would not only advert to the fact that the witness had refused to answer a question but would also consider whether, in fact, the question was legally asked. The defence of the person would be that the question was one which the court could not legally ask him to answer or that the document which he was called upon to produce was one which the court could not legally require him to produce. The court before which he would be tried would then decide whether there was, in fact, an offence, whether the labour court was legally entitled to ask him the question or to produce the documents and if they held that the question or the document did not relate to the proceedings, and that the labour court was not legally entitled to ask these questions or to require the production of these documents, the court would have to hold that no offence had been committed. My main argument against the amendment is that the use of the word "legally" in two places in paragraph (b) has precisely the same meaning and gives precisely the same safeguard as the wording in the sub-section.
It is quite obvious that there is no use in my pressing this amendment. I seem to have had the misfortune to have been supported by all the lawyers in the House but, believe it or not, neither Senator Summerfield nor I consulted any of them when we were putting down the amendment. I did ask some lawyers outside the House and they did not seem to give to the word "legally" the same interpretation as the Minister now gives to it. There are many lawyers who do not believe it has that meaning. I am, however, not so much interested in the legal point. I am looking at it from the purely practical point of view. If there is an idea that this court may be used, in case of heat or feeling in connection with a dispute, for the pillorying of people they are not going before it.
Quite. There was an assumption that the rules of court would permit of the cross-examination of witnesses. I do not know that that is certain to be the case.
I have not assumed anything. I think that possibly they may. I can see cases in which some people will be keen on satisfying the court that other people are unreasonable in refusing a demand for the production of certain documents, and I can see a request for information or imaginary information or information that is thought to be there, with the idea of establishing that a person is unreasonable. I am afraid it may be extremely difficult for the court to rule out questions of that kind. It may allow them with the very best intentions, and then the witnesses who refuse to answer will be guilty of an offence under this section. You will be dealing largely with the laymen in this court. They will not be nit-wits; they will presumably be common-sense people in interpreting this section and if it is clear that questions must be relevant, and narrowly relevant, to the subject matter which is being considered, that will strengthen the court in deciding to refuse to allow questions which might otherwise be put. You must remember that the position of the chairman in examining a witness is not at all like that of a soldier; he is not going to take quick action in disallowing questions, and he is up against the fact that the witness, who may be an employer or a trade union official, for various reasons sees far more readily what is behind the question than the chairman, and may refuse to answer it. My feeling is that if you had the protection clearly and definitely that the question must be relevant, it would make matters easier for the court itself and it would certainly create confidence, because a witness would feel that if he were summoned for refusing to answer he would be able to prove that the matter on which he was asked had no proper relation to the subject matter. The Minister says he can do so by reason of the fact that the word "legally" comes into the section. I have not been able to find any lawyer inside or outside the House who agrees in that opinion.
I propose to withdraw the amendment, but I ask the Minister to satisfy himself that if a witness goes before the labour court and refuses to answer a question and if he is prosecuted for that it will be a sufficient answer to show that it was not relevant, within the meaning of the word "legally". Honestly, I do not think it will be. I have not taken up the time of the House in debating other points, because I was not very much concerned with these points.
I am concerned with the practical side of it. In withdrawing it, I would ask the Minister to ask his advisers to be absolutely sure that if he is or I am summoned it will be sufficient for us to prove to the higher court that the matter had nothing to do with it. If that is so, I have nothing more to say. My fear is that that would not be sufficient under the meaning of the word "legal". In connection with that—it was mentioned by Senator O'Dea—I am uneasy as to the relation of that to Section 22, because the word "publicly" does not appear in Section 22, and also as to any information given to the court "which is not available otherwise". It may be available from the income-tax authorities or it may be available from the staff or in various ways. But the word "publicly" is not there and, therefore, there is practically no protection under Section 22, which means that people will be very chary as to the nature of the evidence which they may be asked to give under Section 21.
Amendment, by leave, withdrawn.
Progress reported; the Committee to sit again.