Industrial Relations Bill, 1946.—Committee Stage (Resumed).
SECTION 21.
I move amendment No. 39:—
In sub-section (4), to delete all words from the word "section" in line 33, page 9, to the end of the sub-section, and to substitute the words following: "the court may sanction the payment to him of such expenses as it considers reasonable and the Minister for Finance shall make such payment."
This amendment is meant to do common justice to the unfortunate people, and especially the unfortunate poor people, who will be compelled to attend as witnesses before the labour court and who may be summoned possibly from places as far distant as The Skelligs or Tory Island. As the Bill is drafted, it provides that when a witness attends before the court the Minister may, if he thinks fit, pay to him such sum in respect of expenses incurred by him in connection with his attendance as the Minister, with the sanction of the Minister for Finance, determines.
Now, this is a witness who is compelled to attend by legal process and who has no option to refuse. You would expect there would be given to him, as a matter of elementary justice, such expenses as were involved in his appearing before the court, let alone the question of compensating him for his loss of earnings in attending. But all he is given is such sum as the Minister, if he thinks fit, may allow, after consultation with the Minister for Finance. That is an entirely wrong system.
The matter of witnesses' expenses, so far as my experience goes, is always left either to the court before whom the witness appears, or to some officer who assesses expenses. The matter is done quite simply. Supposing a witness gives evidence and that witness comes from Oughterard, he says that he had to take a bus from Oughterard to Galway and a train from Galway to Dublin. When he arrived in Dublin he had to pay 7/6 for lodgings. Then he may say: "I cannot get back by the train to-night", and that means there will be another night's lodging. The whole thing is calculated very simply. The man gets his bus fare, his return railway fare and the cost of his lodgings in Dublin. The sum is fixed by the court and an order is made that he shall recover his money. In about 30 seconds it is ascertained what expenses he has incurred and an order is made that he shall recover them.
What is the procedure provided by this section? Presumably he will send in some kind of account of his expenses to the Minister's Department. No doubt the officials will answer it by queries. They will point out that according to the map in front of them there is a railway between Oughterard and Galway and they will ask why did he not go by rail rather than by bus. The man will reply that the map is a little out of date, that the trains have not run on that line since 1923 and that the rails were taken up in 1925. After a correspondence of this nature, necessitating three or four letters, an entirely unfair sum will be arrived at and the unfortunate witness will not merely lose what he might have earned in three or four days if he had been in the country, but he will get an inadequate sum for his expenses, simply because there will not be available the ordinary procedure of question and answer to decide on the moment any disputed point.
Senators may think I am painting an exaggerated picture, but I should like to remind them of a story, a reasonably well-known one. An Irishman was in the British Civil Service. He was working out in South Africa and he sent in an account for travelling expenses over a matter of 70 miles. The civil servant before whom it came pointed out that these were travelling expenses for going from town A to town B and according to the map in front of him the distance between the towns was 10 miles "as the crow flies". The Irishman wrote back pointing out that between the two towns there was a range of mountains extending to 7,000 feet and anyhow he rode a horse and not a bloody crow. That, in fact, is an historical incident and that is the exact message which was written back. That shows the disadvantages of having witnesses' or other expenses considered at long range by a Government office or by a conscientious civil servant when they could be settled once and for all and with complete certainty if the matter were left to the court before whom the witness had given evidence, or to the registrar of that court. For that reason, I hope the Seanad will agree to accept the amendment. It will save time; it will save postage; it will secure certainty; and it will achieve common justice.
I think Senator Kingsmill Moore has been misled by the wording of the sub-section. It is necessary to have the sub-section here in order to empower the Minister for Industry and Commerce to pay expenses. In practice, of course, there will be a regular scale of expenses.
A regular scale is not an altogether satisfactory method. You cannot have a regular scale when dealing with all the complicated circumstances which accompany the attendance of witnesses. There may be witnesses of what I might call —in spite of the invidious tinge— different classes who stay in different hotels and who travel by different means. If you try to fix a hard and fast scale you are sure to overpay some and underpay others, whereas the court can ascertain the expenses in five minutes. It is done every day in the Circuit Court. It takes roughly 30 seconds to ascertain the fair expenses of a witness, but if you have a scale, it merely means increased red tape and is sure to result in injustice.
What can be the objection to having it decided by the court, or by the court registrar, who can get the facts from the witness then and there? How is the Minister, by imposing an arbitrary scale, to achieve justice for the workman who comes from Rathmines, the workman who comes from Ballagha-derreen, the person who travels by bus, the person who travels by train, the person who has to stay in a cheap lodging-house and the person who may reasonably be allowed to stay at the Shelbourne? I have mentioned only a few of the differences which will arise. The Minister will see that it will be necessary to consider whether the trains were such that a man would have to spend a day in Dublin at the beginning and a day at the end, and how many days he was kept waiting before being called as a witness.
A little ingenuity will suggest to him 40 or 50 different considerations which may have to be taken into account in each individual case, and it would be quite impossible to deal with them on the basis of a scale. It is not like the position in which you are dealing with county councillors always travelling from the one place on specified days to attend meetings of a county council. The circumstances will vary almost infinitely, and I cannot see the objection to having it decided by the court when it is done in every Circuit Court and in every District Court, or to having it decided by the registrar, who would act as the equivalent of a taxing master. I urge it on the Minister as saving a lot of money and being much more satisfactory.
The issue really is whether the expenses are to be determined by the court or by somebody else. If they are to be determined by somebody else, that person is not the Minister for Industry and Commerce but the Minister for Finance. That is the significance of the phrase here "with the consent of the Minister for Finance". That is a most invidious position in which to put a court of any character, and particularly a court of this kind—a position in which the court certifies that Pat Murphy is entitled to expenses and the Department of Finance then determines how much those expenses shall be, spending a month writing letters to find out how little they need pay. The Minister should take a firm line on this amendment and insist that the court, and not the Minister for Finance, will determine what expenses are to be paid.
We adopted the practice established in connection with trade boards which has worked very satisfactorily and which has led to none of the complications which Senators imagine.
This is not a trade board.
Witnesses' expenses are the same in either case.
The position here is totally different. Here is a case in which the court is empowered to require a person to attend and give evidence. A trade board has no such power. It actually provides a scale of fees for the members of the board. There are no witnesses before a trade board, but there is a scale of expenses just as there is for civil servants who have to travel. This is a different matter. This is a matter of a court which will have power to call upon a person living in Glenties to come to Dublin and give evidence in a case before the court. The person so called has no option; he is bound under penalty to come and give evidence. I suggest that the Minister ought to recognise the fact that this is not a trade board.
I cannot get the point of Senator Duffy's remarks. The determination of a reasonable scale and the making of payments in accordance with that scale is the point at issue. Such a scale exists in connection with trade boards and payments have been made in accordance with it without any delay, without any of this protracted correspondence or unnecessary querying of items of expenditure to which Senators have referred. I think there need be no difficulty in having expeditious payments made in accordance with a reasonable scale.
If the Minister were on holiday in Waterford and if he were summoned to attend as a witness before a sitting of the court in Sligo, would he think himself fairly treated if he were held down to some hard and fast scale applicable to people attending from the immediate vicinity of the court?
No, but I think a uniform scale is by far a preferable system. I would not contemplate differentiating in the payment of expenses according to the social class of the person concerned.
It is a question of the status of the court. The Circuit Court allows costs, travelling expenses and other expenses, as it thinks fit.
And even the District Court.
I did not want to go down so low. I thought we might at least start with the Circuit Court. The Minister says he is accepting the view that there shall be a scale of expenses prescribed by the Department of Finance in respect of this court, although the Department of Finance has no such power and claims no such power in respect of any of the courts of law.
I cannot pretend to have the interest in this matter that Senator Kingsmill Moore or Senator Duffy has, but it strikes me that, if I am to be summoned as a witness before such a court, the court itself will be hampered by the fact that there is to be a scale of expenses which may, in fact, not cover the expenses of a particular witness.
Why does the Senator assume that?
I do not want to go into a long discussion on expenses generally. I have some experience of the rates fixed by other Departments in the matter of travelling expenses. In the case of a county councillor going to a county council meeting, if he cycles ten miles, he gets 1½d. per mile to-day just as he got 30 years ago. I have no experience of what it may be in this respect, but I think that generally the same mentality will prevail and the same principle will apply. That is not a satisfactory position in which to put this new court and I think it will be hampered because it may be very difficult to get a certain type of witness to attend and be out of pocket.
If the situation is that there is a scale of fees, and that the court cannot do anything in the case of a witness who has spent some of his money, in order to give evidence before the tribunal, I think the court will be in such a position that it is not able to fulfil the functions you are entrusting it with.
The Minister has given no reason why this court should depart from the universal practice of the other courts.
I take a slightly different line on this. My objection to it is the optional manner of the existing sub-section, whereby discretion is placed in the Minister, and there is no provision for certification by the court, as such, to the right of expenses. It appears to me that it would be more satisfactory if the Minister would not fix these expenses but that the court would fix them, and, in a case where there was any question, whether there would be too much or too little fixed, the court itself should determine whether a witness deserved to be paid or not. Supposing a witness was summoned and refused to answer questions, perhaps not a full refusal, which would warrant prosecution, but refused to answer fully and frankly, is the court to determine the matter?
As the section stands a witness may apply to the Minister for expenses, and the Minister, if he thinks fit, has to say whether the witness is to get expenses or not. He has then to go and ask the court: "Is it reasonable for me to pay expenses to this witness"? Having got a reply, he has then to transfer the matter to the Department of Finance. It appears to me that it would be more in keeping with the dignity of the court if it and not the Minister fixed the expenses. Whether the scales should be fixed reasonably or unreasonably, or whether fixed by the court or by the Minister, I have no doubt that the Department of Finance will have a big say, and that the scales will not be over generous.
Will the Minister say why he put in these words "the Minister may, if he thinks fit,"? That seems to be the point made by Senator Sweetman. If we knew what the procedure would be, perhaps the wording of the sub-section would be all right. As Senator Sweetman says, the court is the best judge whether a witness is entitled to expenses or not. Supposing the court came to the conclusion that a witness was not candid or helpful, or that it was a case brought by himself, and for that reason he ought to get no expenses, would the court make a report to the Minister, and would he be guided by it in a matter of that kind? If that was to be the procedure, and if the Minister tells us that he will pay expenses of a witness, when recommended by the court, possibly that would get over the difficulty.
In practice that is what will happen. The payment of expenses will be automatic following a report of the court.
Then why express it as optional?
I presume it is because payment is not a legal obligation but is ex gratia.
I do not think it should be ex gratia. If you pull a man away from his work, and if he has to spend a couple of days attending court to give evidence, surely it is a matter of right, seeing that it is the process of law that brings him there. It is different in the case of a witness attending for his own purpose before a trade board. Why take a man away from work in order to facilitate, if you like, the community, and not reimburse him?
The purpose of the sub-section is to authorise the payment of expenses in such a case. The payment is made by the Minister for Finance.
And we should be bound to pay what the court fixed. We all place great importance on this court and the Minister is giving it very large powers. In spite of the large powers given it, and to laymen, while excluding any legal luminaries, he will not trust it to fix expenses which the Minister for Finance will pay. I do not understand that.
Would the Minister consider the matter before the next stage?
No. I think the sub-section is quite adequate and I do not anticipate any difficulty. I have asked Senators before to assume that other people could act reasonably.
This is vital to ensure that the court will work.
The question of expenses may not arise in a great many cases at all.
Is the real difficulty this, that the Minister for Finance is not here and that the Minister cannot agree to it without discussion with the Minister for Finance?
No. We have adopted the practice which has worked satisfactorily in the case of a somewhat similar tribunal.
I do not want to press this, but I cannot understand why the Minister is so very "cagey" about putting in a mandatory provision.
The Minister will agree that it would be better if the sub-section gave an option, directing that the court, if it thinks fit, may pay such sum as it sanctions.
I think the sub-section is better.
Except that the Minister has made up his mind about it.
Amendment, by leave, withdrawn.
Section 21 agreed to.
SECTION 22.
I move amendment No. 40:—
In page 9, line 37, after the word "Court" to insert the words "nor any member thereof".
This section imposes a prohibition in respect to the disclosure of information obtained in the course of any inquiry held regarding the business before the court. I cannot quite follow what is meant by the section. It says: "The court shall not disclose any information". Does that mean that the court is prohibited from disclosing official information which it got in the process of inquiry? I suspect that what is meant is that individual members of the court are warned that they must not disclose to anybody information which reaches them in the course of the inquiry. I am fortified in that view by a reference to the equivalent section in the Control of Prices Act, 1932. Section 21 of that Act reads:—
"Subject to the provisions of this section it shall not be lawful for any person who is a member or an officer of the commission to disclose any information available to him only by virtue of the powers of obtaining information conferred upon the commission or upon an inspector by this Act to any person other than a member or officer of the commission concerned with such information in the course of his duties."
It seems perfectly clear that in drafting the Control of Prices Act there was in the mind of the Minister, if I know the Minister, the necessity of warning an inspector, or warning members of the commission that they must not disclose to anybody, other than to their colleagues, any information which reached them concerning the business of a firm or of an individual.
In my view, the same thing should apply here. There should be a prohibition directed to individuals rather than a prohibition directed to the court. However, there may be some reason why the court, as a court, should be prohibited from divulging information which reached it officially and I am not proposing to interfere with that. What I am proposing to do is to say that the court and the members of the court shall be prohibited from disclosing information which reaches them as such.
This section is intended to be a direction to the court, to every member of the court and to the staff of the court. I want to make clear that it is no more than a direction. There is no provision in the Bill for enforcing secrecy and there are no penalties for breaches of secrecy. It is intended that the section shall constitute a direction to the court and members of the court. It is assumed that they will endeavour to conform to the direction, while recognising that there are no penalties for non-conforming.
Surely, there should be penalties. Members of the court might, in the course of their duties, obtain very confidential information. If they disclose that information, should they not be liable to penalty? Are there not penalties at common law for such an offence? Perhaps the lawyers could help us on that matter. It seems astounding that a member of the court should be allowed to go around talking about information he obtained as a member of the court without being subject to penalty.
He might be publishing documents which reached him as a member of the court.
He might be writing histories.
On Section 22, I wonder if the Minister has considered the questions we discussed last evening.
We are now on the amendment, not on the section.
This matter arises on the amendment by Senator Duffy. I do not think that any great harm would be done by inserting the words suggested by Senator Duffy. I see a distinction between the court and members of the court. The court has to publish reports and they might be held to be disclosures by the court, whereas a disclosure of a private matter by a member of the court would be different. Possibly there should be also a penalty. What I am more concerned with, however, is the point that the chairman should have some power to refuse to allow questions to be put which would tend to get information which would be injurious either to the trade union concerned or to any trade or business. Would the Minister reconsider the question of drafting an amendment on that matter?
Is not that reopening the question that arose on Section 21 yesterday?
This applies to Section 22 as well as to Section 21. Section 22 deals with the keeping of secrets and I think this matter might be more appropriate under this section than under Section 21.
I have no objection to inserting in this section any words the Seanad wants but I suggest that the words in the amendment are not adequate. If you want to specify, you should refer to the court, the members of the court, the registrar and the staff of the court. However, I do not think it makes any difference whether you do that or not. These finicky points are based on the assumption that those who are to constitute the court will be bereft of intelligence.
Would not the same apply to the members of the Prices Commission?
No. The matters coming before this court will, as a rule, be matters concerning the affairs of persons who voluntarily go to the court to get some advantage for themselves.
I think that the Minister is inclined in these matters to take up an attitude akin to that of a member of an amateur theatrical company and to say: "It will be all right on the day". It is the business of the Legislature to take precautions that everything will be "all right on the day". It is all very well to say that people will not do this or that. People are not supposed to rob or murder but they do.
Does the Senator suggest that we should write into the Bill that members of the court should come into court wearing collars, sober and with their faces washed. We do not require to have all these things provided for in the Bill.
It is not necessary that the members should wash their faces, but it is necessary that they should guarantee to the public that information which they derive because of the powers conferred by this statute will not be used for the writing of an article in a newspaper—an article disclosing information which a member got in a document prepared under the hand of the court. I suggest to the Minister that, without holding up the business of the House unduly, he should look at Section 21 of the Control of Prices Act, 1932, and consider whether there is anything wrong in repeating that section in this Bill.
I have no objection to including the court, members of the court, registrar and staff of the court.
"Any member or officer of the court" would be a simpler way of covering the matter.
Or any person listening-in at the key-hole.
Does the Minister not consider that there should be a penalty?
Is not a penalty provided? The Minister may remove a person for special reasons.
It is merely a pious expression to say that nobody shall disclose confidential information obtained in the course of his duties if there are no penalties for such disclosure.
They can be removed if they prove themselves unworthy members of the court.
With all respect, they cannot be removed except with the permission of the organisation that nominates them.
The organisation that nominates them will have sufficient intelligence to seek their removal in such circumstances.
The Minister is still wrong.
I shall produce an amendment on Report to elaborate the section.
Amendment, by leave, withdrawn.
On the section, this section does not carry out what the Minister intends. What is intended is that evidence which is handed into the court and which is not publicly available shall not be made publicly available save with the consent of the person concerned. If I were an employer and handed in my profit and loss account, it would not be covered by this section because my profit and loss account is available otherwise than through evidence to the court but it is not publicly available otherwise than through evidence to the court. There should be some wording governing the word "available". Otherwise, the section does not mean what the Minister intends.
To put in the word "publicly" would make it very restrictive.
Is it not intended to be restrictive? Surely the intention is that the private business affairs of people going before the court will be protected against disclosure?
I do not know what the Senator means by "private business". A strike occurs. The rate of wages, the number of workers and the class of persons concerned might be a matter of public discussion and might be referred to in the report of the court upon the strike but it could be held to be the private business concern of the employer. Yet, it would be very pertinent to the issue before the court.
I do not agree with the wording of the section.
Section put and agreed to.
SECTION 23.
I move amendment No. 40A:—
In sub-section (2), after the word "rates" in line 48 to add the words "and its effect on the price level".
I put down this amendment to test what appeared to be and what in the course of the debate has proved to be an important point of principle and a matter concerning which some of us at least are very anxious. Senator Foran put me on the alert about this matter. He, speaking with very considerable experience, said that it is no good settling a labour dispute if, when the wages have been adjusted, the parties have to suffer an increase in the cost of living. That point was further developed by Senator Kingsmill Moore yesterday, when he said that there was very considerable anxiety that the parties might seek a solution along the lines of least resistance by the employers giving way to labour and passing the burden on to the consumer. Those of us who have to live on moderate incomes know that that is what is going on to-day. I could not help smiling when Senator Foran seemed satisfied with the assurance he obtained from the Minister that a Bill would be introduced to make price control effective in these times of scarcity. When I questioned by interjection that optimistic view of the Senator's he replied that surely the Minister made a good job of price control during the emergency. A good job, I ask you, when we find that our price level is 100 points higher than the price level in Great Britain, working on a 1914 base, when we know that the burdens on people of moderate income are crushing and when we know that there is very deep-seated discontent because of the failure to control our price level and, furthermore, when we see, on a conservative estimate, at least £40,000,000 excess profits reflected during the emergency in increased prices on the consumer and £40,000,000 in increased profits on corporations, with no estimate possible of the increased profits of private companies, partnerships or one-man businesses. The Senator and the House apparently are satisfied that there was effective price control during the emergency. There was no effective price control during the emergency. There were plenty of irritating restrictions, there were plenty of investigations but, on the face of it, on the figures obtained by the revenue in increased profits, price control was not effective. I want to distinguish between increased prices due to the higher price of imported goods and increased profits on the top of increased prices. These are totally separate matters.
Now, we have this court set up and matters of labour disputes will come before it and there will be a report from the court, limited at present, under the Bill, merely to the trend of wages. I consider that this court has a responsibility, not merely to try to settle wage disputes, but to have regard to the burden that its decisions will place upon the consumers even if it is only that in making their annual report they have at least to address their minds to the question of the effect of their decisions on prices, not necessarily a rise in prices; it will be all the better if the effect is a reduction in prices. I consider their report would be utterly inadequate and worth nothing at all if it is merely confined to the trend of wages. What can a court very usefully say about the trend of wages? I am afraid that all these matters that come before the court will be reflected in a rising trend in wages. That is the outlook, as far as I can see, for some time to come. Merely to be told that the effect of the deliberations of the court is increased wages, is worth nothing. Let the court at least have regard to the effect of its decisions on prices on the poor burdened consumer, the unorganised consumer.
We have this Bill entirely designed to protect vested interests, the vested interests of our manufacturers, in a narrow restricted market, and the vested interests of the unions. The Minister's primary duty is to represent the third party in the trinity, that is, the consumer. Capital, we know, is well represented; labour, we know, is highly organised, and the Minister should be the guardian of the consumer. I am afraid his record in this matter is open to very grave question. I do hope the Minister now will at least insist that this court will address its mind to that matter and will have a sense of responsibility as to the effect of its decisions on the consumer and on the price level and that he will accept this amendment if only to place on the court the obligation to address its mind to that matter and to discuss the whole matter in its annual report.
Senator Sir John Keane seems to seize any and every pretext to pose in this House as the champion—of what?
The poor, downtrodden consumer—he being the representative of the biggest vested interest in this country, the banking interest. Is it not time somebody reminded him that in the opinion of all sections of the community, labour and employer, the banks have a lot to explain away as to what happens to their money when it is lodged in the bank at about 1 per cent. and 1¼ per cent.?
On a point of order, are we discussing Senator Sir John Keane in his private capacity or are we discussing——
Wait now. The Chairman will control order. Senator Sir John Keane takes every latitude to attack all sections. He has attacked not merely the employers this time but has joined Senator Kingsmill Moore in making what I frankly state was a despicable attack on unions of men and employers who propose to use this court. It has been alleged that they are going to conspire against the community. Do not they themselves represent the community? Are not they the community, perhaps in a far greater sense than the man who, in this House, in season and out of season, thinks it is his job to champion the community? I am here in a representative nature as an employer. I have as little interest in those people, no matter who they are, who in the recent years of the emergency skinned the community, as the Senator has. Respectable employers have no more time for them than has any other person.
So there were such people.
I did not interrupt the Senator and the Senator might let me alone.
It is very hard indeed to have people who make speeches far more frequently than others not giving an opportunity for other people to say something. If employers generally made the money they are alleged to have made, there is this to be said for it, that the State got a good slice of those profits, whether in the guise of excess profits or any other guise.
The general level of the burden on the consumer would have been greater if the State had not had those sources of revenue to draw upon. I was one of those representatives of employers who, before the Bill reached the Dáil, felt that, because of the prior consultation with our friends in the trade union movement, this Bill would have an easy passage because it was intended to be an experiment that we hope will be a big success and something that will lead to the harmony that is very desirable if the country is to prosper. But what have we got here now? A long series of amendments, many of them, in my opinion, vexatious, but even those that are not are being talked to death, and on top of that we get another one on the Order Paper, No. 40a, which is being used as an opportunity to make wild and unreasonable attacks. It is good publicity, but precious little else. I think the Minister and the House ought to be spared from it and I sincerely hope it will be valued at about the same value as that which I place on it—and that is not much.
I would like to intervene at this stage, to bring to the notice of the House what the Bill is about. It is quite obvious from Senator Sir John Keane's observations that he does not appreciate the purpose of the Bill at all. We are not setting up here a court to regulate wages. We contemplate that wages will, in the future as in the past, be determined by the process of negotiation and bargaining. If it is desired that the State should take responsibility for the wage level, for the fixing of wage rates and the enforcement of those rates, it will be necessary to get an organisation very different from what this Bill contemplates and powers far in excess of anything the State now possesses.
We are proposing here to establish machinery to facilitate the process of fixing wage rates by negotiation and bargaining. It may be that in particular occupations wages will move too high; it may be that in particular occupations they will be kept too low. In so far as the State might want to remedy any such position, it will have to do so by utilising powers other than those given to it under this Bill. Whatever powers it had in the past to deal with that situation it will still have, and whatever additional powers it may require it can get. If employers want to give way to labour, as Senator Sir John Keane suggests, they do not need the enactment of this Bill to enable them to give way. If they want to take a different line, their power to do so is not being impaired by the enactment of this measure.
None of these matters seems to be related to the amendment at all. There is a suggestion that this court might be asked to review, in its annual report, the effect of the trend of wages during the course of the year on the price level. I had a provision of that kind in the Bill when introduced. I took it out in the Dáil, at the request of members of the Dáil, who argued—and, I think, very reasonably argued—that this court was not a competent body to investigate the effect upon price levels of the trend of wages and that if the court was to be given the responsibility of reporting on that point they would have to be given a staff of experts and powers of inquiry which would enable them to produce a report worth reading. I thought that argument was sound, and because I thought it was sound when made in the Dáil, I amended the Bill. I think it is still sound. You can ask this court to report on the business that comes before it. It can express its view upon the general trend of the business with which it is dealing, but to ask it to extend its inquiry after that and investigate the social and economic consequences of the business dealt with by the court would involve it in inquiries which it is not equipped to undertake. That is my main argument against the amendment.
I am rather interested to find that this was not original, that my amendment was the Minister's first thoughts. I never knew that was so, so I do not think I can be held up to public obloquy—perhaps for what I said, but not for the amendment. It was in the original Bill, though I confess my studies were not sufficient to lead me to know that. Therefore, there was surely nothing extraordinary, obstructive or provocative in the amendment.
I may have overstated my case. I did not state it in the manner Senator Summerfield would like, but I am afraid he will have to put up with a good deal more he does not like on this question of the price level.
Amendment, by leave, withdrawn
Mr. Hawkins
On behalf of Senator Quirke, I move amendment No. 41:—
In sub-section (3), line 49, to insert after the word "each" the word "registered", and in lines 50 and 51 to delete the words "registered by the court under Part V of this Act".
This is only a drafting amendment.
Amendment agreed to.
I move amendment No. 42:—
In sub-section (3), line 51, after the word "secretary" to insert the words "or secretaries".
The word "secretary" includes "secretaries".
It is only a drafting amendment, and I need not delay the time of the House if the Minister would agree to it.
Under the Interpretation Act, the word "secretary" includes more than one person, and it is not necessary to make the amendment.
There are two secretaries.
Nevertheless, under the Interpretation Act the word covers both.
Amendment, by leave, withdrawn.
Amendments Nos. 43 and 44 not moved.
Section 23, as amended, agreed to.
Section 24 agreed to.
SECTION 25.
In the absence of Senator Duffy, may I move amendment No. 45, for the purpose of calling the Minister's attention to the point:—
In page 10, lines 13 to 19 inclusive, to delete the definition of "employment agreement" and substitute the following definition:—
the expression "employment agreement" means a written agreement relating to the remuneration or the conditions of employment or to both the remuneration and conditions of employment of workers of any class made between a trade union of workers or more than one trade union of workers and an employer or trade union of employers or made by a registered joint industrial council.
What about the Senator's permission?
It seems that there is a point in it, that "employment agreement" should include not merely agreements that deal with wages only or with conditions of employment only but which deal with both. It is merely a drafting amendment and, in the absence of Senator Duffy, I just raise the point.
I brought the point to the attention of the Parliamentary draftsman, who assures me that the clause as it stands in the Bill covers an agreement dealing with either remuneration or conditions of employment or both. Under the Interpretation Act, a singular word includes the plural and, accordingly, the term "trade union of workers" includes more than one trade union.
Amendment, by leave, withdrawn.
Amendment No. 46 not moved.
I move amendment No. 47:—
In page 10, line 15, to delete the words "or workers in any trade or industry" and substitute therefor the words "type or group".
I am prepared to accept this amendment.
This amendment and a large number of others following on the same line are acceptable, so it is not necessary to give the reasons.
There is one of them in a somewhat different category. This amendment is, I think, an improvement on the wording.
Amendment agreed to.
I move amendment No. 48:—
In page 10, in the definition of "employment agreement", to delete all words after the word "made" in line 17, and substitute the words "by a registered joint industrial council".
This is intended to be a drafting amendment. The phrasing in the sub-section seems to be unnecessarily involved and I am proposing to change it. I am not keen as to whether it is accepted or not, if the Minister is satisfied his draft is all right.
I have had the matter examined and the draftsman appears to think his own draft is preferable.
Draftsmen always do, of course.
He is open to suggestions.
Amendment, by leave, withdrawn.
Section 25, as amended, agreed to.
SECTION 26.
I move amendment No. 49:—
In line 27, page 10, to delete the word "maintain" and substitute the word "keep".
This is only a matter of English. The section uses the words "the court shall maintain a register". That is not English. To maintain a register means to hump it about on one's back. It should be to "keep" a register, and I rather think the Parliamentary draftsman would agree.
No, he does not; he will not agree.
Well, he did yesterday. I think this should be altered, as "to maintain a register" is not English. You "keep" books, you "keep" a register; and to "maintain" would refer to the physical transportation. It is wrong, unless it is meant to say that they are going to transport the register from town to town, according to where they are sitting. The proper English is "keep". I state that categorically and I see no reason why, if we are using the English language, we should not use it properly.
The word "maintain" means "to establish and keep up to date". That word has been used in similar sections in other Acts, and is regarded as preferable.
Perhaps the Minister would look into this between now and the Report Stage.
Amendment, by leave, withdrawn.
Section 26 agreed to.
SECTION 27.
I move amendment No. 50:—
In sub-section (3) (a), page 10, line 40, after the word "agreement" to insert the words, "in support of its registration"
I am not clear about what is meant by the words "substantial agreement" in paragraph (a) of the sub-section. What is meant by "substantial agreement" as regards conditions of employment and registration?
I am accepting amendment No. 51 in the name of Senator Kingsmill Moore which suggests the insertion of the words "that it should be registered". Therefore, it will be clear that there must be substantial agreement "that it should be registered".
Amendment, by leave, withdrawn.
I move amendment No. 51:—
In sub-section (3) (a), in line 42, after the word "respectively" to add the words "that it should be registered".
Amendment agreed to.
I move amendment No. 52:—
In page 10, lines 43 to 47, to delete paragraph (b), and substitute the words "that the agreement is expressed to apply to a defined class of workers and their employers."
This paragraph caused a good deal of trouble in the other House and was altered, I think, once or twice. In my view, it is still difficult to get a complete understanding of what it will mean when it comes to be applied by the court. We are in this difficulty, that the machinery which is being set up will depend entirely on the manner in which the court looks at documents presented to it for registration. The court, of course, is not free to register every agreement submitted to it. It must be satisfied that the agreement conforms to certain principles which are laid down in the Bill. We have just disposed of paragraph (a) to this sub-section. We are now dealing with paragraph (b). In this paragraph, the agreement—
"is expressed to apply to all workers of a particular class and their employers where the court is satisfied that it is a normal and desirable practice or that it is expedient to have a separate agreement for that class."
There will be a good deal of argument, I imagine, as to what is meant by the words "that class". For example, we talk about railway clerks as a class; we talk about chemists' assistants as a class.
If an agreement is made which purports to cover the conditions of employment for chemists' assistants, and it is expressed to apply to that class and their employers, then I submit that, so long as the word "all" stands, it must cover all chemists' shops in the Twenty-Six Counties in which assistants are employed. I think that when organisations come along to the court to have agreements registered they will be up against that problem. Some years ago this question arose under a Trade Board Act. I agree at once, of course, that the expression in the Trade Board Act of 1909 was very different from that which is in this Bill. The question arose as to whether the two organisations, one representing the workers, and the other employers, covered the handicraft tailoring trade. The inspector appointed by the Minister reported that the two organisations covered all the employers and workers, but when evidence came to be given it turned out that out of all the master tailors in Ireland only 122 were members of the organisation. That gentleman, I may say, was a distinguished member of the Irish Bar. A different inspector might hold a different view, and might consider that the 12 employers did not represent all the people in the trade throughout the Twenty-Six Counties. In this amendment, I am seeking to have inserted a simple phrase in lieu of paragraph (b). It seems to me that, unless we want a much more elaborate form of amendment, my proposal is superior to that set out in the draft submitted by the Minister.
I do not like the wording of the sub-section nor do I like the wording of the amendment, perhaps for a slightly different reason. The Bill and the amendment both deal with this matter on the basis that the agreement is expressed to apply to all workers. I find a difficulty in seeing how an agreement, before registration, can be expressed to apply to persons who are not parties to it. You will always have persons who are not parties to an agreement because you will have workers in a particular class who are not members of a union. I could understand how, after a registration, they could be governed, but I do not know how, before registration, an agreement can be expressed to apply to them. Neither do I see why the wording of the agreement apart from the reality of the agreement should be the binding factor. Whether an agreement is expressed to apply to all classes of workers or not would appear to me to be far less important than whether it was suitable to apply to all classes of workers. I suggest, therefore, that the sub-section, as drafted, as well as Senator Duffy's amendment, would be better met by some such words as "suitable to apply to" because the sub-section would not then be open to the objection which I have indicated. In that way you would be dealing with the reality of the agreement and not merely with verbal forms.
It is very difficult to see how any agreement can bind anyone but a party to it. Although it may be expressed to apply to them, it is ineffective unless the people to whom it is expressed to apply have signed it themselves or are bound through somebody negotiating on their behalf. It occurs to me that it might be possible to get over the difficulty if you were to say "that the agreement is, in the opinion of the court, suitable to be applied to all workers of a particular class, type or group". Perhaps if these words were inserted it would be possible to attain the Minister's end without expressing it in a form which seems to me to be a legal contradiction. I have not put down an amendment nor am I dealing with this in a contentious way. I am, however, anxious to find a formula which would be accurate and, at the same time, would express the intention of the Minister in the Bill. I do think that, as it is phrased there, it is at least very unfortunately phrased and probably does not mean anything. I might sign an agreement with Senator O'Dea. We would put our names to it and we could express it as applying to every person in the Seanad but unless we were authorised to sign that agreement for them it would be no good expressing it in that way. It would not apply to them. The solution must not be the insertion of a meaningless form of words but a provision that, in the view of the court, the argument is suitable to be applied to the whole of the particular group. Probably the wording I have suggested is not the best but I do think that the Minister might have the matter examined to see whether he could not arrive at some formula between now and the Report Stage which would be less objectionable.
I think it would be possible to adapt Senator Duffy's amendment so as to make the sub-paragraph more definite. I would suggest that Senator Duffy's amendment should be accepted by the Minister in the following form: "That the agreement is expressed to apply to all classes of workers therein defined and their employers". This is merely for the purpose of stating what must be expressed in the agreement. It is not sufficient to have it expressed in the agreement, as the paragraph provides further that it cannot be registered unless the court is satisfied that it is a normal and desirable practice or that it is expedient to have a separate agreement for that class. Apparently Senator Duffy's objection is that the agreement itself must express therein that the agreement applies to all workers of a particular class. If the agreement expresses that it applies to workers of a defined class—that is defined in the agreement —and their employers, I think that should meet the requirements of the Minister and of Senator Duffy. I put forward that suggestion for consideration by the Minister.
I think Senators have failed to grasp what is intended here. Workers and employers can make agreements and give effect to these agreements without having resort to the registration provisions of the Bill. The employees of an individual employer can come to any arrangement with that employer. It can be regarded by both parties as binding on them and they can proceed on the basis of that agreement without having regard to provisions of the Bill. What we are proposing here, however, is that where an agreement is of a general character, made in relation to a class of workers and intended to apply to all workers of that class, then it can be registered and if registered, it will apply to all workers of that class, whether or not all workers of the class or the employers concerned were parties to the agreement, provided the court is satisfied that the parties to the agreement are substantially representative of the workers and employers concerned. That is what we are aiming to do here. It is not merely providing for the definition of agreements or for the registration of agreements. It is to provide machinery by which agreements made in relation to a class of workers, by parties who are substantially representative of the majority of the employers or workers concerned, can by registration be made enforceable on all. It is quite clear from this paragraph that the agreement must be intended to apply to all workers of that class and so expressed. We want to give the court power to refuse to accept the agreement for registration if it is satisfied that it is not a normal and desirable practice to have an agreement for a particular class within a class, to prevent undue sub-division of agreements. It is only where the court is satisfied that it is a normal and desirable practice or that it is the court's view that it is expedient that there should be a separate agreement for the class of workers covered by the agreement and that it would apply to all workers within the class, that it can be accepted for registration. If it is accepted for registration, then all workers and employers concerned are bound by the agreement whether or not they are parties to it.
There is a clause in the Workmen's Compensation Act of 1934 which deals with different grades of workers. Section 21 of that Act provides that the wages of a workman shall be computed on the average for 12 months and then it goes on to say that where "it is impracticable at the date of the accident to compute the rate of remuneration, regard may be had to the average weekly amount which, during the 12 months previous to the accident, was being earned by a person in the same grade employed at the same work by the same employer or if there is no person employed by a person in the same grade employed in the same class of employment and in the same district". I presume this will cover grades.
A class of worker is any group of workers who by a definition can be distinguished from other workers.
Let us say that an agreement is made in particular circumstances to cover a certain group of people. It is all right so long as the particular union and the employers' organisation know that they are negotiating in respect of certain firms or certain individuals in firms or certain classes of workers in firms, but the moment you register that agreement you bring within its scope people who are not parties to the agreement. There is no particular reason why an employers' organisation or a trade union should register an agreement at all except to bring people within the agreement who would not otherwise be covered. I have this kind of case in mind. An agreement is made, let us say, between a trade union representing shop assistants and employers in the drapery trade in the centre of Dublin, defined by streets, say Grafton Street. Let us say that certain firms in Grafton Street may not be members of the employers' organisation and their employees may not be members of the shop assistants' union. I take it if that agreement is registered and is expressed to apply to all shop assistants employed in Grafton Street, it does in fact apply to the unorganised employer and his unorganised assistant. I want to make sure if that is so, that the word "substantial" is not going to prevent the agreement being registered, because the word "substantial" must have a particular significance in relation to numbers. I looked up the debate in the Dáil to see what was said on the subject because it seems to me that these words "substantially representative" in paragraph (c) of sub-section (3) cover the whole question of the registration of agreements. In that regard the Minister said in the Dáil: "I mean a majority of the parties irrespective of the size of the parties".
I think the reference was to paragraph (a).
The phrase "substantially representative" was the phrase referred to. I have been looking up reports of various kinds to see if I could ascertain whether the word "substantially" has ever been defined in any way.
There is a case under the Rent Restrictions Act decided by the Court of Appeal in London on July 30th in which a somewhat similar phrase appears. I grant that it is used in a different connection. It was used in this connection. A letting of a premises was made by a landlord to a tenant, the letting being a furnished flat. The Rent Restrictions Act provides that, if a substantial portion of the rent is attributable to the furniture or to the attendance provided in the flat, then the flat does not come within the Rent Restrictions Act. Lord Justice Moulton in giving the decision said that the Act gave no guidance on that, that is to say, what is meant by the phrase "substantial portion of the rent". He said that the whole rent was £100. Was £15 a substantial portion of it? The Legislature had not seen fit to lay down any particular percentage. His Lordship said that after careful consideration as to whether he could do so, he was prepared to say that, in the absence of special circumstances, 20 per cent. of the whole rent would be a substantial portion. Anything less than 15 per cent. would not and from 15 to 20 per cent. would be a borderline case. Where the expression "substantial portion of the rent" is used in the Rent Restrictions Act the court was prepared to say that 20 per cent. was a substantial portion. In this case we are discussing what is meant by the parties to the agreement——
I think that applies more to paragraph (a) than to paragraph (b).
I am referring to paragraph (c) where the words "substantially representative" appear. Paragraph (c) says: "That the parties to the agreement are substantially representative of such workers and employers". I was trying to relate paragraph (b) to that phrase so that we would know whether a large body of people being unorganised and not being parties to the agreement could prevent registration, because that is where the substantially representative character comes in. If, as I say, an agreement is made between a body of employers covering the central area of the City of Dublin and a body of employees and it is shown that actually half the people employed in that area, within the kind of trade covered by the agreement, are not members of any organisation, I cannot see that the court will register that agreement. I was hoping, therefore, that we could get a provision in the Bill which would enable the court to say: "We are not going to register the agreement for the central area of Dublin, but we are prepared to register an agreement which will cover the parties to the agreement and deliberately exclude the people who do not want to come into the agreement because they are not members of the contracting bodies." I do not know whether it is easy to do it or not, but I suggest that these organisations which come along with their agreements will be confronted by a tremendous difficulty when faced with paragraphs (b) and (c) in the section as it now stands.
There is obviously a substantial difference between the terms "substantially part of" and "substantially representative of". It has been obvious in the course of the past few hours that the lawyers are a substantial part of this House, but very few would agree that they are sub-substantially representative of the House.
The lawyers take up very little of the time of the House and they only speak when spoken to, so to speak. I think Senator Duffy in this case is off the point, because paragraph (b) deals with the agreement itself. We will take the agreement and look at it. Does that agreement contain a statement that it applies to all workers of a particular class? If it does, then the court will proceed to deal with it, provided it is satisfied that it is a desirable practice or that it is expedient to have a separate agreement for that class. This amendment is merely a drafting amendment. The Senator seeks to replace the wording in paragraph (b), "That the agreement is expressed to apply to all workers of a particular class and their employers" with the following words, "That the agreement is expressed to apply to a defined class of workers and their employers." I cannot see any difference between the phraseology of the Bill and the phraseology of the amendment. The Minister seems to think there is a great difference, but I cannot see any difference between the words, "that the agreement is expressed to apply to all workers of a particular class and their employers" and the words "that the agreement is expressed to apply to a defined class of workers and their employers." In other words, there is no difference between all workers of a particular class and a class of workers defined. If it applies to a class, it applies to all members of that class. There is very little difference between the amendment and the phraseology of the Bill.
The substantial difference which would be effected by the amendment would be the deletion of the words, "where the court is satisfied that it is a normal and desirable practice or that it is expedient to have a separate agreement for that class." I think these words are very important.
The Minister has not explained the difficulty raised by Senator Duffy, that when you get an agreement between a certain number of employers and a certain number of workers, they do not include all the workers or all the employers of that particular type of group. I admit that by registering it you can make the observance of it compulsory on the people who have not signed it. But I do not see how the agreement itself can, in the words of the present section, be properly expressed to apply to all workers when there is a whole lot of workers, although they may belong to the particular group or type, who have not been properly represented by the people who signed the agreement.
It is only a matter of wording I am dealing with, because I entirely agree with the principle of the section and with the principle that a registered agreement should apply to the various classes of employers and workmen who have not been parties to it. But I do find it difficult as a lawyer to conceive an agreement which is expressed to apply to people who are not parties to it and who have not given their consent to the people who sign it to act as their agents.
The parties that conclude the agreement must be substantially representative of the employers and workers concerned. It is intended to provide that if the building trade employers and the trade unions concerned in Dublin come to an agreement as to the rates of wages for building operatives these rates will apply to all those engaged in the building trade, whether they are members of the Federation of Employers or of the trade unions concerned or not. In other words, the effect of the registration of an agreement is to establish a standard rate and to prevent any one employer being able to get advantage over those who have participated in the making of the agreement by paying lower wages.
That can only be done by statute. I think it should be, "that the agreement if registered shall apply". My point is that when you are dealing with a contract you cannot call to your aid a statutory provision. You cannot have it applied, and should not have it expressed to apply, to people who are not parties, either by themselves or by agents. If it is altered this way, that the agreement is expressed if registered to apply to all workers, you get rid of that, because the statute can say that although they are not parties to it we will statutorily enact that it shall apply to people who are not parties to it. It could be expressed as being intended to apply.
I do not think it makes much difference. The meaning is the same in either event. The intention is that the court will accept it for registration, if it is clear that the agreement is intended to apply to all workers in that class.
I do not think it is quite accurate as it appears in the Bill. If the agreement is expressed as intended when registered to apply, it would be perfectly all right, but as it is, you are conceiving an impossible kind of legal contract. You can make a statutory contract of that nature, but you cannot make a contract outside the statute except between people who are parties to it. It is only a matter of wording, because we are all in agreement with the Minister. I think this should be considered by the draftsman.
If Senator Kingsmill Moore refers to the following sub-section (4) he will see that it suggests that where an application is made to the court to register an agreement, the court shall direct such parties as may be specified to publish particulars of the agreement. But the court will not register an agreement until the lapse of 14 days after publication. Anybody in the meantime can object to that agreement and it will not be registered if the objection is upheld. If people say, "We object to that because the rates are too low" then that agreement will not be registered, unless, on examination, the objection is considered frivolous.
Amendment, by leave, withdrawn.
I move amendment No. 53:—
In sub-section (3) (b), after the word "class" in lines 44 and 47, to insert in each place the words "type or group".
That amendment is being accepted.
Amendment agreed to.
I move amendment No. 54:—
In sub-section (3) (d), line 52, after the word "class" to insert the words "type or group".
That amendment also is being accepted.
Amendment agreed to.
I move amendment No. 55:—
In sub-section (4), to delete all words from and including the word "direct" in line 9, to and including the word "to" in line 10.
Surely the Minister will accept this amendment?
I do not think so. The proposal here is that if there is an application for the registration of an agreement, the parties applying for registration should publish, in such form as the court may direct, particulars of the agreement. If the court accepts the agreement and registers it, the court will publish, in the form it considers best, necessary details of the registered agreement. I do not think it is unreasonable to require that the parties applying for registration in the first instance should be responsible for publication.
I believe the application would be made far more attractive if it was published by the court and, if the obligation was on the court to publish it, it would at least bear the official imprimatur. I suggest that if the court publishes the application it will receive far more attention and consideration.
I think the Senator missed the point. Supposing I make an agreement with some group and I decide that I will register it and compel everybody else to conform to it, it is quite obvious I will not succeed and that the court will fling me out on the ground that the parties are not sufficiently represented. It will be a test of my bona fides if I undertake to bear whatever expense is involved by publishing the fact that I am applying for the registration of an agreement and setting out the details of it. If the court accepts me as the representative and accepts the agreement as suitable for registration, then subsequent to registration the publication is at the expense of the court. I suggest it is a fair test of the bona fides of the applicant that he should publish at the preliminary stage, at his own expense, the nature of the application. There may be certain circumstances in which the court might not entertain the application and why should the court be put to the expense of publishing it?
If the court makes known to the public at large that this application is being made, it will receive the serious attention of all the parties concerned whereas if I, as an individual, give notice in the papers that this application is being made, it may not call for the same attention or consideration as if it were published by the court. I think the Minister will see the importance of that point.
I think it is fair enough to require that the applicant should publish the details in the first instance. If the application is accepted by the court as bona fide and is registered then the court publishes it. If I apply for an auctioneer's licence, I must publish the fact that I am applying. Once I have been granted the licence and I proceed to function as an auctioneer, there may be other considerations involved, but where in the first instance the application is coming from a person who may be entitled to apply but who may not be a serious applicant, it is not unfair to put on that individual the obligation to publish.
The object of registering an agreement is to compel an unscrupulous employer to pay the standard rate of wages. It is only natural to expect that nobody will go to the court to register an agreement if it applies only to a few people and cannot possibly apply to the mass of the people engaged in any large industry. The opinion of a fair number of trade unionists—and it is my opinion also—is that the obligation for publication should be on the court.
The Senator apparently does not appreciate the point. Suppose I walk in and say that I want to apply to register an agreement, the court does not know whether there is such an agreement or whether I am a serious person who represents any body, until they have examined the application. It would, therefore, be unfair to put on the court the obligation of publishing details of the agreement. I think that at that stage the person applying for the facility should be required to undertake the expense of publication. If the court decides that it is a bona fide application and one that they should accept, in that case the subsequent publication is at the expense of the court.
I think the Minister is not putting the case fairly. If he will reconsider this matter I think he will see the justification for the amendment. A person will only register an agreement that will apply to a substantial number of people.
The court cannot know that until it has investigated the application.
They must at some stage take steps to ensure that it is a serious agreement, involving a large number of people. At what stage do they do that? I suggest that if a party comes there to register an agreement, they must inquire into it at that stage and consequently that publication should begin from there. If they are satisfied that it is a proper agreement to be registered, unless there is substantial objection to it through the country, they should have the responsibility of publication.
Amendment, by leave, withdrawn.
I move amendment No. 56:—
In page 11, sub-section (5), lines 15 to 17, to delete the words "publication of particulars of the agreement in accordance with sub-section (4) of this section" and substitute the words "the direction mentioned in sub-section (4) of this section has been complied with".
This is purely a drafting amendment. It is another way of expressing the same idea. I think that what is involved is the direction given by the court to publish. I suggest that it is compliance with the direction rather than publication which should be provided for in the sub-section.
It is a drafting point and I think the original wording is better. There is no difference in substance, I take it.
It is only a question of what is to be complied with—direction or publication. I suggest that it is the direction, because the direction is given by the court.
Amendment, by leave, withdrawn.
I move amendment No. 57:—
In sub-section (6), page 11, to delete the word "Act" in line 30, and substitute the words "enactment, contract or otherwise".
In this case, it is a question of preserving the right of a person covered by an employment agreement to recover moneys otherwise than under this Act. Sub-section (6) provides that a registered agreement will not prejudice the rights of persons under another part of this Act or any other Act. There may be rights outside this Act which will be affected.
This Bill does not purport to interfere with them.
Not by implication or otherwise. It does not purport to interfere with any rights under an existing contract which provides for better conditions than the registered agreement.
It limits conditions. It not merely provides for better conditions for some people but it limits the conditions in respect of certain other people.
No; that is the point I am making. There is nothing in the Bill which provides that the registration of an agreement will have the effect of depriving a person of any better conditions to which he may be entitled under an existing contract, and it is not necessary to put in the safeguard because there is no suggestion that such rights will be taken away.
In the sub-section, there is a saving provision in relation to certain things. I am not a lawyer and do not profess to argue the legal interpretation of the sub-section, but I have a fear that, by expressing a reservation in relation to other parts of this Bill and to other Acts, we are excluding anything which we do not express. I have a suspicion that there are rights acquired at common law which are not expressed in any statute which may be prejudiced by an agreement. I do not want to discuss Section 33 in advance, but a registered agreement purports to do certain things. Some person goes into a court of law to establish a claim which he alleges he has against an employer at common law. If the employer pleads the registered agreement, in my view, the court is required to ask the labour court to interpret the registered agreement in relation to this man's claim and the labour court may interpret the agreement to the prejudice of this person claiming at common law, and he has no redress.
There is nothing in the Bill which says that. What the Bill says is that, when an agreement is registered, any existing contract of service which provides for lower wages or worse terms is deemed to be amended to provide for at least the wages and terms in the agreement, but there is nothing in the Bill which says that a person who has already a contract which provides for better wages or terms is prejudiced.
Suppose he has got no contract?
It does not make any difference. We are not depriving him of anything. We are merely giving him the benefits which registration gives.
I merely want to draw attention to the fact that we are preserving certain rights which are mentioned—rights under other parts of the Bill and rights under other statutes. I want to preserve a right at common law. If it is necessary to preserve a right under another statute, it seems to me to be obvious that it is necessary to preserve rights at common law. That is the extent of my claim.
I see a difficulty, even supposing Senator Duffy is right. Suppose a registered agreement contains a provision that a workman in a certain trade is to provide his own tools and suppose that workman is injured by another workman by reason of something going wrong with his tools and an action is taken against the employer for the negligence of his workman. The employer would reply by pleading common employment and the workman would say that his injury was due to a defect in the ways, or means, or tools, and so is an exception to the doctrine of common employment. If, by the provisions of the registered agreement, the workman had to provide his own tools, the registered agreement would deliberately have altered the rights at common law and would be meant to alter them, and should alter them, I think. I rather think it is better as it is. I have to advert later to the difficulties of Section 33, but I rather prefer it as it is.
I have had in the past to take proceedings on behalf of persons who claimed they had certain rights in relation to the conditions under which they might be dismissed. It was claimed, for instance, by an organisation with which I was identified, that a person could not be dismissed from a shop in the City of Limerick without a month's notice. We were able to show that that had been the practice for a very long period of years and that it was, in fact, accepted by an arbitration tribunal which existed in Limerick 30 years ago.
On evidence of that character being given in the court of justice, the judge upheld that claim and gave a decree for a month's salary in lieu of notice. Now, let us take an agreement made between a workers' union and an employers' organisation in Limerick and registered under this Act. It provides that the notice shall be 14 days. It seems to me, although I do not want to argue it in face of legal opinion, that a person who heretofore was entitled to a month's salary in lieu of notice is now prejudiced and in fact that, if the employer pleads the registered agreement, he can be held liable to pay 14 days' wages in lieu of notice.
In that case, it seems to me that there is a new contract.
Does Senator Duffy imagine for a moment that when these terms would be published, other employees would not send in an objection? Of course, they would, if the workers were foolish enough to enter into an agreement providing for worse conditions than they had. All the other employees would raise a howl of protest, because it is always recognised that a shop worker is entitled to a month's wages. That is the common custom and it is impossible to imagine that any agreement would be made that would lessen the period. If it were in the agreement when published, all the other shop assistants would raise an objection and no court would register such an agreement. I do not know why Senator Duffy has proposed this amendment. As the Minister pointed out, when an agreement is registered, no matter what the contract is, if it is for a lesser wage, the employer must pay the higher wage provided for in the agreement. There is nothing to say that he can come down to a lesser wage if he has already agreed to pay a higher wage.
Take a case with which we are familiar, where there is an agreement between shop assistants and a merchant draper, say in Galway, providing amongst other things that no one may be dismissed except on a week's notice on either side. If there is a new agreement accepted by the parties, substantially representative of those to whom it is proposed to apply, and if there has been a custom going back 50 or 60 years, of giving a month's salary in lieu of notice, I suggest that the registration of the agreement deprives any person of a right he had before it was registered. There can be no doubt about that. I want to preserve that right, in the interest of the common good, for parties to an agreement which prejudices their own interests in certain respects.
It is not the registration of the agreement, but the making of the agreement that matters.
Excuse me, they are required to go to the labour court for the interpretation of an agreement which is registered.
I can assure Senator Duffy that no shop workers in Galway will ever make an agreement with employers whereby their employment can be terminated on a week's notice.
Supposing it was the practice that they were entitled to six month's notice?
Why assume the impossible?
Amendment, by leave, withdrawn.
Question proposed: "That Section 27, as amended, stand part of the Bill."
Paragraph (3) clause (d) contains these words "that the agreement is not intended." The words "not intended" seem to require a little notice. It is impossible for a court to spell out the intentions of the parties. What is really important is whether the agreement is calculated to restrict unduly employment generally. That is an objective fact that the court can ascertain. It may have difficulty but it can do so whereas the intention of the parties cannot be ascertained because it is locked up in their breasts. It is impossible to ascertain intentions but it is possible to obtain the probable effects. On the ground that the intentions do not matter a straw but that the effect is all-important, I suggest that the Minister might consider whether he might not alter the wording before the Report Stage.
That paragraph caused considerable discussion in the Dáil, and I agreed there to insert the words "not intended". The Bill as introduced required the court to be satisfied that the agreement would not have the effect of unduly restricting employment or preserving inefficient methods of working. That was the objective. It was urged that the court could not ascertain whether the agreement would or would not have that effect in practice in many cases. Clearly what we desire is to give the court power to register an agreement where it was satisfied that that was the intention. The court has to satisfy itself that the agreement is not intended to have an anti-social effect. It can refuse to register, if it thinks that is the intention of the agreement. It does not have to investigate whether the agreement would have this consequence, but has to be satisfied as to the intention.
I think the intention will have to be expressed in the agreement.
Question put and agreed to.
SECTION 28.
I move amendment No. 58:—
In sub-section (1), line 36, before the word "group" to insert the words "class, type or".
I think this is an agreed amendment.
No, this is a different point.
May I give an example? Take Messrs. Guinness where you may have a difference between skilled and unskilled labour. That is a difference between types of labour. You may have a difference between vatmen, vanmen, brewers' men and mechanics. That would be a difference in a class of labour, or you might have a division into all the employees of Messrs. Arthur Guinness and Company at Ringsend, Limerick, or something like that. That would be merely a group. I suggest the use consistently throughout the Bill of the words "type, class or group" so as to make certain to cover any conglomeration of human beings who might like to make an agreement with their employers.
I have no objection to the extension of the term "class" to cover a type of work where relevant. In this case we are dealing with the possibility of variation of an employment agreement. It is intended that the variation should only apply to a small group or class of workers amongst those to which it relates. It could not apply to any class or type.
If you accept class, type or group later on you might have to alter it.
I will produce an amendment to delete the reference to a group.
Amendment, by leave, withdrawn.
I move amendment No. 59:—
In sub-section (2), page 11, before paragraph (a), to insert the following paragraph:—
"(a) the court shall hear all parties appearing to the court to be interested and desiring to be heard, and after compliance with the foregoing provisions of this sub-section."
I am endeavouring to ensure that the same procedure will apply.
I will accept the amendment in principle, and will produce an amendment for the Report Stage.
Amendment, by leave, withdrawn.
Question proposed: "That Section 28 stand part of the Bill."
I want to raise a point here that I think is of importance. This section provides for the variation of a registered employment agreement. Sub-section (1) reads:
"If a registered employment agreement provides for the variation of the agreement in accordance with this section, any party to the agreement may apply to the court to vary it in its application to any worker or group of workers to whom it applies."
I take it that means that unless there is a provision written into the agreement it may be varied in accordance with the provisions of Section 28 of the Bill.
Except by agreement between the parties.
But the agreement is gone.
If both parties agree to withdraw the agreement and to substitute another for it they can do so. If they agree in advance they can provide for variation of the agreement on the application of either party.
It must be stated in the agreement.
It must be part of the agreement.
Section 28 agreed to.
SECTION 29.
I move amendment No. 60:
In sub-section (3), page 11, line 58, to delete the word "six" and substitute the word "three".
I take it that the Minister will have no objection to this substitution.
I should like to know the reason for it. We got agreement in the Dáil on six months' notice and I do not think that we should depart from it without good reason.
The sub-section provides that where a registered agreement does not provide for its own termination— I think that that is the common form of agreement —it remains registered for a minimum period of 12 months. If the parties to the agreement agree to its termination for the purpose of making a new agreement and having the new agreement registered——
No. If all parties agree to determine the registration, they can do so. We are dealing here with termination of the registration by one of the parties.
Yes. We require six months' notice in that case. It was considered, in discussions with the organisations concerned, that six months' notice was reasonable, the intention being to give adequate notice that the existing agreement is not regarded as suitable and that it is desired to have a new agreement concluded. That would give time for arranging the new agreement.
It might run for two years and notice might be given by one of the parties for its termination——
This was intended to cover the types of agreements which are of an unusually complicated character, cases in which the trade unions concerned generally prefer not to reopen the agreements as a whole and in which only in very unusual circumstances would they give notice to terminate. Ordinarily, when a difficulty would arise, they would negotiate a variation of the agreement—a percentage variation of wages, an alteration in the wages of a particular class of workers or some alteration in the conditions of work— leaving the main body of the agreement unchanged. Some trades and occupations are working on the basis of agreements negotiated 20, 30 or 40 years ago and varied by amendment ever since. Where there is mutual agreement not to reopen an agreement, it is because of the complicated nature of the employment. It is proposed in a case of that kind, where an agreement is not one that will ordinarily be terminated at all and where the provisions of Section 28 would be applied to secure variations from time to time, if there is to be a termination of the agreement and the conclusion of a new agreement, ample time should be allowed to complete the new agreement.
I agree with the motive but I was wondering whether the provision might not defeat its purpose. If an agreement is regarded as onerous on one of the parties, there may be a desire to terminate it rapidly, failing variation. In fact, there may be no provision for variation at all. If you tell the organisation, whether of employers or employees, that they must wait six months to have anything done, you may have unauthorised disputes.
The Senator is basing his argument on the assumption that termination of the agreement after six months' notice will be in the interest of the employer. It could well work out the other way. Many of the trade disputes which occurred after the last war during the period of falling prices and falling wages would have been averted if there had been a provision of this kind to give six months' notice to the workers before there could be reduction of wages or alteration of conditions to their detriment. This period of six months was agreed to by the trade union organisations and, unless for very good reason, I should hesitate to change it.
There was no standstill Order after the last war.
For ten or 12 years after the last war trade disputes were occasioned mainly by a movement on the part of employers to reduce wages. I do not say that history will repeat itself. There are indications that it will not but, if it should do so, it might be regarded as a safeguard to the workers that, before an existing agreement could be terminated with a view to negotiating a new agreement for less wages or worse conditions, six months' notice would have to be given.
I do not think that we should be misled by the analogy of the last war. In this case, wages have not gone up even to the extent that the cost of living went up. The increase in the skilled rate is only 15 per cent. over the figure for 1939.
The Senator has not been reading the Trade Journal.
There is not much risk of any demand by employers for reduction of wages.
There may be in the future. I admit that the immediate prospect may appear to suggest an upward movement in wages but that process will come to an end at some stage. Is it not wise to provide that, where there is a registered agreement and one of the parties desires to bring that agreement to an end, adequate notice be given of its intention by that party to the other party?
The only question is whether three months or six months is the more reasonable. People who make an agreement may not take it for registration for two years. Consequently, the agreement must run for a minimum of 12 months thereafter unless both parties agree to have it rescinded.
Or the court agrees that there has been such a change in the circumstances that it is desirable to terminate it.
One of the parties to an agreement cannot secure its termination unless it is 12 months in force and then they must give six months' notice.
Unless they satisfy the court that there is a fundamental difference in the conditions of the industry.
We seem to be discussing this amendment and section on the basis that notice to cancel registration of the agreement is the same as notice to terminate the agreement itself. Registration of an agreement might be cancelled and, though cancelled, it would still remain as an agreement, though not a registered agreement. It is not correct to discuss this matter on the basis that cancellation of registration is the same as cancellation of the agreement itself.
That is what it will mean in 999 cases out of 1,000.
That depends on the party by whom it is cancelled.
Amendment, by leave, withdrawn.
I move amendment No. 61:—
In sub-section (4) (a), line 3, page 12, after the word "period" to insert the words "and notwithstanding any provision that it shall cease to have effect at the expiration of such period"; and to delete all words after the word "section" in line 5 to the end of the sub-section.
This is practically a drafting amendment and I think the Minister is in agreement.
Yes. I am prepared to accept that amendment. The word "section" has to be changed to the word "Part."
There is another bit of wrong wording in this because the section, even as altered by my amendment, would read: "It shall continue in force until its registration is cancelled in accordance with this section", and then it goes on in subparagraph (b) to say that it shall cease to have effect. The point I am making is the same point as was made by Senator Sweetman that in the whole of this section we must keep in mind the fact that a thing may cease to be registered, as is provided in the earlier subsections (1), (2) and (3), but at the same time it will continue as a binding agreement.
The point here is that the suggestion is made in the sub-section that once registration ceases the agreement ceases. Of course it does not.
The agreement continues and it is binding so far as any agreement has a binding effect. That is not stated in the Bill. The opposite is stated in the Bill.
An Leas-Chathaoirleach
The suggestion is that the amendment be altered to read:—
"... and to delete all words after the word ‘this' in line 5 to the end of the sub-section and substitute the word ‘Part'."
Would it be possible to get these two paragraphs redrafted for Report Stage?
What is the Senator's difficulty now? So far as subparagraph (a) is concerned, it is being amended now in accordance with the proposal of Senator Kingsmill Moore. The change of the word "section" to "Part" is merely a typographical change.
Amendment, as amended, agreed to.
I move amendment No. 62:—
In sub-section (4) (b), line 8, page 12, after the word "may" to insert the words "at any time after the expiration of the period specified therein for its duration"; to substitute the word "consent" for the word "application" in line 9, and to delete the words "made after three months' notice to the court"; and at the end of the section to add the words: "provided that three months' notice is given to the court by one of the parties to such registered employment agreement of the intention of such party to make an application for cancellation."
This again is a drafting amendment and if the Minister prefers the draft as in the original section I shall not press it.
I will have an amendment for Report Stage, which will in fact cover the same principle.
Amendment, by leave, withdrawn.
Section 29 agreed to.
SECTION 30.
I move amendment No. 63:—
To insert after the word "class" wherever it occurs in the section the words "type or group".
Amendment agreed to.
Mr. Hawkins
I move amendment No. 64:—
In sub-section (1), line 17, to delete the words "by virtue" and substitute the words "for the purposes".
I think this amendment must be regarded as important. As the clause stands in the Bill it might be interpreted that a contract between a worker and an employer for better terms than have been provided in a registered employment agreement would be negatived and the worker would be bound by the employment agreement. That clearly was not intended and I think the intention of the section is to be safeguarded by substituting for the words "by virtue" the words "for the purposes" so that the sub-section will read:—
"A registered employment agreement shall, so long as it continues to be registered, apply, for the purposes of this section, to every worker of the class to which it is expressed to apply...."
— the purpose of the section being clearly to bring up conditions and wages to those prescribed in the registered agreement and not to alter wages and conditions already above those prescribed.
Amendment agreed to.
Question proposed: "That Section 30, as amended, stand part of the Bill."
Is it not desirable that there should be some saving in Section 30 by reference to Section 28: "A registered employment agreement shall, save in so far as it might have been varied under Section 28..."? I did not notice it when reading the Bill first, but it does appear to me that it would be better in the section itself to refer to the possibility of there having been a variation under the preceding section. I am satisfied if the point will be looked into before Report. It is only a drafting matter.
I want to draw attention to the fact that certain moneys will be recoverable under this section, that is to say, where the employer is paying a rate of wages which is less than the rate provided for under a registered agreement, a claim can be made, I take it, by the worker, for recovery of the difference. This question has arisen on other Acts and it is better to have the principle settled now rather than later on, as to whether that claim is valid in five, seven or 20 years, or whatever the period may be. We were asked this year to amend the Act under which the Agricultural Wages Board was established to provide that a claim is valid for two years only on the grounds that claims of this kind brought under statute can be brought any time within a period of 20 years.
We were advised when the Minister for Agriculture brought in an amending Bill that claims had been made going back 20 years, under some of these Acts. At any rate, the Act was amended to prevent claims being made retrospectively over long periods. I do not want that done here but I want to know exactly what we intend doing.
We intend to preserve whatever the period is in common law for the recovery of civil debts.
This would not be a statutory contract. It is an existing contract statutorily recognised.
I am not so sure about that.
The Bill says the employers shall pay the difference. I think that will hold good for 20 years.
What we are doing here is deeming the contract to be amended.
The section states:—
"A registered employment agreement shall, so long as it continues to be registered, apply, for the purposes of this section, to every worker of the class to which it is expressed to apply"
and so on. What I want the Minister to explain is, if this Bill had been an Act last spring, when a number of farmers——
This part of the Bill does not apply to agricultural workers.
It says that it will apply to every worker in the district where there is an agreement.
This Part of the Bill does not apply to agricultural workers.
Only Part VI applies to you.
Question put and agreed to.
Section 31 agreed to.
SECTION 32.
I move amendment No. 65:—
In page 13, before sub-section (2), to insert the following new sub-section:—
(2) If a trade union representative of workers affected by a registered employment agreement complains to the court that any employer of any class to which the agreement relates or a trade union representative of such employers is by means of lookout or by monetary contributions assisting an employer or a group of employers who in contravention of the agreement is or are seeking to enforce against a worker or a group of workers any conditions which are inconsistent with the agreement, the following provisions shall have effect:—
(a) the court shall consider the complaint and shall hear all persons appearing to the court to be interested and desiring to be heard;
(b) if, after such consideration, the court is satisfied that the complaint is well-founded the court may, by order, direct the said employer or group of employers as the case may be to desist from so acting as aforesaid.
Under Section 32, power is conferred on the court to hear claims of two kinds which arise out of registered agreements. An employer may complain to the court that a trade union is doing something in contravention of a registered agreement, promoting a strike for the purpose of securing for its members conditions which are more favourable than those provided for in the registered agreement and, on that complaint being investigated, the court may direct the trade union to desist and if the trade union fails to carry out that direction it becomes liable to a penalty of £100 and £10 for each day on which the offence is continued. On the other hand, a trade union may complain to the court that a particular employer is not complying with the provisions of the registered agreement, in other words, that he is not paying the rate of wages or not paying the overtime rates or not allowing the holidays or not paying the double time on Sundays which the registered agreement requires. In that case, the court gives a direction and, if the employer fails to carry out the direction, he is liable to a penalty of £100 and £10 in respect of each day on which the offence is continued. But there is a very significant omission. There is no provision for dealing with the case of the employer or group of employers who lock-out their employees, not because of any demand made on them by the union but because they want to assist an employer who is involved in a dispute.
There are many kinds of cases which one could cite which will arise in this connection. In the case of a multiple shop having branches in 12 or 15 towns, a dispute may arise between the firm and its employees in its branch shop in Limerick. The members of the staff in Cork, Dublin, Waterford, Tipperary, and other towns are members of the same union as the Limerick men. The employer informs the union that unless the men in Limerick go back to work immediately, all his employees will be locked out. There is no punishment for that step. It may be said that the employees have deserved this, because they are doing something in contravention of an agreement. There may be no agreement covering the employees in Limerick. Liptons have not one collective agreement but only agreements for their branch shops. They may enter into a collective agreement with other grocery firms in the town or may make a separate agreement for their own staff. It is quite conceivable that the strike which arose in Limerick would be a very proper strike and would not in any circumstances contravene an existing agreement. It is conceivable that, in the other instances, the firm was acting in such a manner as to compel the union to settle or modify its claim in the Limerick case. If we are providing here for a penalty in respect of a union that supports a strike in contravention of the provisions of a registered agreement, we ought to provide also penalties for a firm or group of firms which participates in a lock-out for the purpose of supporting an employer who may be involved in a dispute with the union.
I do not know whether the amendment as drafted covers the case fully. I mentioned the matter on the Second Reading and the Minister suggested that, if I drafted an amendment to cover the point, he would examine it. I have endeavoured to do that and I think that, broadly, the amendment does secure that the court can take cognisance of a complaint which is made to it that a firm or a number of firms is supporting an employer, by lock-out or by any other methods, perhaps by financial methods, in contravention of the provisions of a registered agreement.
It is not necessary, of course, that a firm should on all occasions lock out its employees in order to assist somebody else who is engaged in a trade dispute. It has been the common practice in Dublin for large firms to come together and undertake that, if Mr. A. fights the union on some issue in which they are all concerned, his colleagues—his competitors, if you will—will subscribe sufficient money to make up to him any loss he may sustain as a result of a strike. That has happened in one strike I am aware of in Dublin, which lasted about 19 weeks. The firm was indifferent as to whether it lasted 19 or 29 weeks, as an undertaking had been given by the other firms associated with them that any losses sustained would be made good by them—and they were, in fact, made good by them. We are bound in equity to take notice of the complaint of a union affected by a strike, that an employer is being assisted, either by monetary grants or by lock-out, by other firms. They ought to have the same power to deal with that complaint as they have to deal with the employer or employers' organisation who signs the agreement.
I am not quite sure if I have heard the Senator properly and I want to clarify this. As the Bill stands, a trade union which assists out of its funds a strike designed to compel an employer to give terms other than those provided for in a registered agreement may be penalised. If I understand the Senator correctly, he wants to penalise also an employer who locks out his workers, in order to compel his workers or some other workers to accept terms less favourable than those provided in a registered agreement. I do not think it is necessary to provide against that, as it would be a perfectly futile proceeding for any employer to take. The lock-out cannot prevent his employees with rights under an agreement proceeding through the court to recover from the employer the amount of any wages underpaid and to make the employer subject to legal penalties if he does not pay them. While it is quite obvious that a trade union might promote a strike in contravention of an agreement and should be held to its agreement if it has consented to its registration, there can be no point whatever in an employer locking out his workers to compel them to accept worse terms.
He may not lock them out. He may refuse to concede the conditions provided in the agreement.
If he refuses to concede the conditions, they do not have to go on strike. They can go to the court and the court will order the employer to give the conditions of the agreement and to make good any underpayment in the past. If the employer does not do so, he is guilty of an offence and a penalty is provided.
If he is a party to the agreement.
Any employer who does not give the terms, if he is bound by the agreement.
He may not be bound by the agreement.
If he is not, there is no question of a breach of the agreement. If the workers are of a class covered by the agreement, they have this power of redress through the court.
May I suggest there might be a strike in a case where the employers and workers are both outside any organisation? Let us say it is a strike for payment of overtime.
Does the Senator assume there is a registered agreement for the trade?
I am trying to make the point that the other employers may think it worth while to back up the employer fighting the strike by locking out their staffs.
May I tell Senator Duffy straight away, speaking for responsible employers, that we will have less time for the man who is a party to an agreement and then breaks it than the Senator has himself?
It is a big change from 1913.
May I say sincerely that I wish you were the sole voice for labour, as I would like to take you on? What the Senator has just said is one of the most important things the House has heard for a long time. You dealt with sympathetic action by employers. I say that the day you——
An Leas-Chathaoirleach
The Senator should address the Chair.
The Senator dealt with certain action taken by certain employers within the past 12 months. The day that organised labour, speaking with one voice, can say that sympathetic action on the part of workers will cease, there will be no difficulty in the way and sympathetic and collective action by employers will cease at that very moment. It is a pernicious thing. It cuts us both, and it cuts the community of which we are both a part. I feel that, in making the references that he did, Senator Duffy did not perhaps realise that this amendment of his cuts both ways.
The Minister, in what he said, anticipated a good deal of what I had intended to say, but the matter is so important that I shall repeat it. This deals with the question of registered agreements and with a departure from the spirit of those agreements by some employers. I cannot see that happening. Such employers would be ostracised and black-balled by their own class. I could not quite follow Senator Duffy's arguments in regard to the multiple shops. If it is a question of Liptons or some other firm the employees, I take it, would be members of one union. Surely, when the union concerned would go to register the conditions affecting the employees in that group of shops they would see to it that the conditions were detailed in the agreement. If that is not done then, as the Minister has said, they are outside the agreement and cannot be made subject to penalties for an alleged breach of an agreement which does not cover them at all. When I come to deal with my own amendments I hope to be able to show how this amendment of Senator Duffy's is tied up in principle with them.
I do not want to particularise but so that I may the more easily explain the point that I am on, let me again take the case of Liptons. They have, say, a shop in Tipperary. They may make an agreement with the union representing the employees. The agreement may or may not be registered. There is a separate agreement with ten, 15 or 20 other grocery shops in Tipperary. For some reason a dispute occurs between Liptons and the union in Tipperary. Whether or not the agreement is registered does not matter. The Minister is correct in saying that if something is done in contravention of the agreement a remedy can be obtained in the court. But something may arise which is not covered by the agreement. As I say, there may not be a registered agreement. A dispute develops, and the ten employers in the town who have a registered agreement with their staffs may consider it worth their while to back Liptons in this dispute. Notwithstanding their registered agreement, they lock-out their staffs in sympathy with Liptons. That is a clear case that can happen. If Liptons have not a registered agreement then, of course, anything that they do is not a violation of a registered agreement, or if the dispute arises out of something which is not covered by the agreement there is nothing for which they can be penalised—nothing for which they can be brought to court because they have committed no offence under this Bill. What I am trying to ensure is that the other firms who are parties to the agreement are not going to be allowed, by a side wind, to come along and join in this fight which may be a fight actually promoted as a pretext to bring them outside the jurisdiction of the court. I want to bring them within the jurisdiction so that if they do, what I now assert they may do, they will be subject to the penalties provided in this Bill.
That is not the Senator's amendment. The Senator is seeking to make subject to the court an employer who locks out his workers or assists another employer who locks out his workers to enforce against a worker or group of workers conditions which are inconsistent with a registered agreement. In the precise case mentioned in the amendment, that would be a futile proceeding on the part of the employer because the worker could always go to the court and get the court to enforce the agreement against the employer and make the employer subject to the penalties provided if he did not do so.
The Minister will agree with me that it is conceivable that a strike could take place in the case of a firm in Tipperary——
I fully understand the illustrations given by the Senator, but my point is that his amendment does not deal with that case.
Then I am a bad draftsman.
The amendment clearly deals with the case where an employer is trying to force his workers to accept terms less satisfactory than those provided in a registered agreement.
What I was endeavouring to do was to give the case of an employer who locks out. I did not intend to deal with the original offender because he can be got at in another way if he has a registered agreement. What I had in mind was this: that if ten, 15 or 20 other employers come to his assistance by locking out their workers, and do so in sympathy with a person who is endeavouring to force down conditions, that they should be liable to penalties. I am sorry that my amendment does not cover what I intended it should cover.
Perhaps it would be well if we could get right even with regard to a registered agreement. Suppose the registered agreement with the other employers provides that workmen can be dismissed upon a fortnight's notice and suppose they did dismiss all their workmen upon a fortnight's notice, being activated so to do by a desire to bring pressure upon the workers of the employer with whom the original quarrel had arisen, surely they would not be breaking their registered agreement?
One of the provisions in the agreement which is a sine qua non to registration is that it provides “that if a trade dispute occurs between workers to whom the agreement relates and their employers a strike or lock-out shall not take place until the dispute has been submitted for settlement by negotiation in the manner specified in the agreement.”
I think that the Senator's amendment clearly does not relate to the case which he has given here by way of illustration. If he wants to make another attempt at it he can do so. He is trying to do something that we are not proposing to do under this Bill, and if we were to do that it would seem to follow as a necessary corollary that we should do the same thing in relation to workers' trade unions. That contention could be put forward.
Amendment, by leave, withdrawn.
I move amendment No. 66:—
In sub-section (2), page 13, line 16, to delete the words "an employer or."
What I am seeking in this amendment is to try to reserve to the trade union representative of employers the making of a complaint to the court.
But suppose the agreement is with an individual employer?
I want to reserve the making of the complaint to the union. In the case of a trade union of workers, an individual worker does not appear in court to make a complaint. Why should an individual employer be permitted to do so?
In fact, an agreement can be made with an individual employer and registered. An individual employer should therefore have the right to go to the court and complain that the agreement is not being kept by the other party to it. It seems to me that it would be unfair to deny to an individual employer who may be the only employer who is a party to the agreement, or an employer made subject to the provisions by Section 30—that is to say, an employer who is not a member of the organisation of employers that made the agreement—the right to complain to the court if, in fact, the union is acting contrary to the agreement in its relations with him.
There is some doubt, I think, as to whether an agreement can be made with an individual employer.
I think the Minister will find that there is some slight doubt about it if he looks again at Section 27.
If there is I will get it removed, because it is not intended that there should be.
I agree. It was argued in the Dáil but the court will decide that eventually. We cannot decide it. What I am endeavouring to do here is to ensure that if this Bill is intended to promote organised bodies——
In fact there may be only one employer and class of workers concerned. I mentioned the Dublin Gas Company. Is that not an illustration? There is only one employer there who will be making an agreement relating to the employment of gas workers in Dublin.
Amendment, by leave, withdrawn.
I move amendment No. 67:—
In sub-section (2), in lines 18 and 19, to delete the words "affected by the agreement".
I think this is a very important amendment because unless these words are deleted I am afraid that the harmony necessary to the successful working of the court may be seriously affected. As the Bill stands, it says: "If an employer or a trade union representative of employers affected by a registered employment agreement complains to the court that a trade union representative of workers affected by the agreement is promoting or assisting out of its funds" etc. I am moving that the words "affected by the agreement" be deleted and I do so in no hostile sense at all.
As I said a few moments ago, there are many things which can be settled by mutual agreement between employers and employees, to ensure the harmony necessary to the successful operation of this Bill. But obviously if a trade union other than one concerned in the agreement is to be permitted to assist workers engaged in a strike arising out of a breach of agreement, then the whole basis of the Bill will topple. It is with a desire for peaceful conditions in the working of the court that I suggest that these words should be deleted. That will give the new machinery, I believe, a better chance of success than if the wording of the section is retained in its present form.
Does that mean that an employers' organisation can make a complaint against a union which never registered an agreement in its life?
That is the meaning of the amendment. A complaint can be made against a union that never registered an agreement and that union can be penalised.
I feel that it may be necessary, after we have had some experience of this measure, to have some further amendments. The Bill itself may lead to further Bills and there will have to be some give and take between employers and trade unions if the measure is to be worked successfully. In asking that this point should be conceded, I am quite prepared to state, with the full authority of an employers' representative, that anything which would give the employer an opportunity to hit a worker in the way that this provision would hit an employer, will be cheerfully surrendered by the employers. I make that gesture and I think it is the type of gesture that should be made in the discussion of this Bill. If it should happen that a trade union of the type to which I have referred should exist, would it not be to the detriment of the successful working of the court if that union should be allowed to assist in the promotion of a strike arising out of a breach of an agreement? I take it that the trade unions on both sides who will have registered agreements will be anxious to ensure that the court will work with the highest degree of success and they will not want unions that do not want to register agreements. I should like, therefore, that the spirit underlying my amendment should be accepted as I think it would do much to ensure the success of the Bill.
It seems to me that this amendment, to which I have no objection if nobody else has objection to it, is hardly necessary. It is based on the assumption that a trade union which is not representative of workers affected by a registered agreement will nevertheless use its funds to promote a strike amongst workers which are not members of the union. I think that is very unlikely.
Such things have happened.
Amendment, by leave, withdrawn.
I move amendment No. 68:—
In sub-section (2), after the word "funds" in line 19 to insert the words "or otherwise".
This is another amendment on the same lines as the last one. Assistance can be given in a struggle by both sides—I concede that right away to anticipate any criticism—otherwise than by funds. Assistance can be given by sympathetic picketing or holding up the delivery of goods. All these things are involved in the phrase "or otherwise". I move this amendment in no aggressive spirit because I am one of those employers who are sensible enough to recognise that unless employers and employees alike live up to their responsibilities we are never going to get anywhere. I am not seeking to make capital out of anything that may arise out of this Bill but unless organised employers and organised employees remember their joint responsibilities and try to seek how far their legitimate differences can be reconciled and their joint interests promoted, the Bill will not be a success. I believe there is a possibility that the section as worded at present may lead to an evasion of that responsibility and I therefore move the amendment.
We spent a couple of days on this in the Dáil and the clause as it stands represents the result of very prolonged discussion in which the section as originally introduced was amended more than once. In view of the length of the discussion and the difficulty of getting any form of agreement except on the basis of the sub-section as it now stands, I should dislike very much to have the matter reopened. I recognise that a trade union can assist a strike otherwise than out of its funds.
It would, however, be going very far to insert such words in the section as are suggested in the amendment because the effect of these words might be to make a trade union responsible for the actions of individual members of the union. It could even make a trade union responsible for actions by individuals which were contrary to the wishes of the union executive. I think that the important point is that the power of the court to secure compliance with the conditions of a registered agreement will rest to a much greater extent on moral force than on legal sanctions. If a trade union acts contrary to the conditions of a registered agreement, if it promotes or assists a strike out of its funds or otherwise to compel an employer to grant conditions other than those accepted and recorded in the registered agreement, and is held by the court to have so acted, then I think the union will suffer in the long run. It will be a union with which nobody will make agreements with any confidence that they will be observed and its ability to protect its members' interests will in consequence be seriously undermined. I think, therefore, that the section is all right as it stands.
Everybody recognises that it is not watertight. Everybody knows that a union can get round the letter of the section and assist a strike in contravention of an agreement otherwise than out of its funds, even to the extent of giving financial assistance by the device of opening a subscription list amongst its members, without utilising the union funds at all. There is no effective legal safeguard, however, which would be acceptable to the unions concerned and which would be watertight. I think it undesirable to rely too much on legal sanctions in such circumstances. It is much better to rely on the moral force which will attach to these agreements when registered with the court and the moral effect of condemnation by the court if there is a breach of the agreement.
The Senator is not going to press the amendment?
Because if he were, I should have a lot to say to it.
Amendment, by leave, withdrawn.
I move amendment 69:
In sub-section (2), page 13, to insert after the word "worker" in line 23 the words "to whom the agreement is expressed to apply"; and in line 24 to delete the words "other than" and substitute the words "inconsistent with."
I think the sub-section is unsatisfactory as it stands. It deals with the penalties which can be imposed in certain circumstances on an employer and it relates to the granting of remuneration or conditions to workers other than those fixed by an agreement. It seems to me that it is difficult to justify the imposition of penalties on an employer who grants conditions to workers other than those in an agreement. I take it that what we want is to ensure that the agreement will represent the minimum standard of conditions, and I think it would be an improvement if we were to insert the words, "inconsistent with" instead of saying as in the sub-section, "conditions other than those fixed by the agreement."
I think it is the same thing. Personally, I cannot see any difference between the two sets of words. I think the words "other than" are preferable, because they make the meaning clearer. It is necessary to make it clear that there is nothing following from the registration of an agreement to prevent an employer from paying better wages or giving better conditions to the workers. What we are dealing with here is a strike assisted by a trade union out of its funds, the trade union being a party to an agreement, to compel an employer to give conditions other than those in the registered agreement. That strike can be penalised under the section. But, if the trade union approaches the employer and suggests that there should be certain alterations in the terms and conditions of the agreement or the rates of wages of the workers in the class, or certain workers in the class, and the employer agrees to make the alterations, there is nothing which prevents him from doing it, and it is not intended that there should be.
Personally, I am not over keen on the amendment, but I think the sub-section is too rigid. I do not see that it is easy to get a satisfactory sub-section.
It must be quite clear what type of action by a trade union you have in mind to make the trade union subject to the penalties prescribed here.
Amendment, by leave, withdrawn.
Amendment No. 70 not moved.
I move amendment No. 71:—
In sub-section (3), paragraph (b), to delete the words "or decline".
This deals with one of those long-established and jealously guarded rights of the workers, namely, the right to work or not if he thinks fit. I do, however, argue that if this clause giving the worker the right to decline to work is retained it will be one of those things that will undermine the hopes of the success of the court we are now proposing to set up. It is a totally different thing to concede that a man should have certain protection if he is unable to work. But, when he declines to work, it brings in this whole question of sympathetic action. I could make a very long speech on that, but we all know what the effects of sympathetic action are.
Speaking from the employer's side, I wish the day had arrived when sympathetic action on both sides would be rigidly and definitely prohibited; that, if there is a dispute, unfortunate as it is always, it will be confined and strictly limited to the immediate participants. This clause will allow a dispute to extend without limit if a man can decline to work without being immediately affected by the issues concerned. I hope, therefore, that even our labour friends can see it is just one of those things that will have its repercussions on the operations of the court and that they will agree with me that these words should be deleted. I can assure you frankly and openly what the employers would be prepared to do if we could get this obvious cause of future trouble removed.
I think Senator Summerfield in this matter must have regard to realities. I can fully understand his objection to this paragraph and, in certain circumstances, I would not have agreed to its insertion. It is obviously desirable that a trade union which registers an agreement should not condone any action by its members that would appear to be supporting a strike by workers in contravention of an agreement made on their behalf by their recognised spokesmen. At the same time; we know that there is in this country a multitude of trade unions. There is practically no trade for which there is not more than one trade union at the present time, and any trade union which registers an agreement would put itself in a position which would bring it into conflict with its members in the circumstances contemplated in the sub-section. These circumstances envisage a strike contrary to a registered agreement taking place in premises where other members of the union are employed. In accordance with trade union practice, it is clear that the other workers, although they are not affected by the strike and their own wages and conditions are not concerned, will not pass the strike picket, will not work in the premises where the strike takes place, and would ordinarily not be required by their union to pass the strike picket, but would in fact receive strike pay while out of work because of that reluctance to depart from what has been the traditional attitude taken up by workers.
If a union is to be debarred by this section from allowing dispute benefit to workers in that position, then there will be on the part of these unions a very considerable reluctance to register agreements because, in the event of such a dispute, they will see the possibility of coming into conflict with their members and losing members to other unions which are not a party to the registered agreement and, consequently, not bound by the limitation.
There is a great deal to be said for the provisions of the sub-section as it stands. I think it is reasonable enough to confine the section to the case of a union supporting a strike by persons whose wages and conditions are the subject of a registered agreement. I do not think it is going too far to permit a union to pay strike pay to other members whose wages and conditions are not affected but who decline to work in premises where a strike may be irregular and unlawful for the purposes of this section. I argue in favour of the retention of the sub-section because I think that without it there will be much greater reluctance than there might otherwise be on the part of trade unions to consent to the registration of an agreement.
Amendment, by leave, withdrawn.
Question proposed: "That Section 32 stand part of the Bill."
I should like clarification on one point. The Minister will remember that I said yesterday that under the Industrial Courts Act there was no power to inflict penalties. The Minister then said, "No, nor is there in this." Surely under this section there are powers to inflict penalties.
The court can direct an employer to make payments and, if the employer declines to obey the order of the court, he commits an offence. It is by a court of law that the offence is tried and the penalty imposed.
The penalty is only indirectly inflicted by the court. It is a legal subtlety which I do not understand. The penalty is to be inflicted by a regular court.
There is one point which I should like to get cleared up. This section provides that the court shall consider certain complaints. Let us say there is a complaint by a trade union that an employer is not observing the conditions of a registered agreement. If the court gives a direction, the employer, if he fails to observe it, commits an offence and is liable to be prosecuted. I wonder what is the position of the worker under this section, assuming that the court gives a direction which the employer fails to carry out? Is the individual worker then free to proceed in the ordinary civil courts?
He is always free to do that; he can do it at any time; he does not have to go to this court.
Question put and agreed to.
Business suspended at 6 p.m. and resumed at 7 p.m.
SECTION 33.
Question proposed: "That Section 33 stand part of the Bill."
I move:—
To delete the section.
When I first read this section I blinked and I read it again because I thought that either my eyes had gone wrong or that my brain had ceased to function, my attitude being that of the old lady who, when first confronted with a giraffe, exclaimed: "There ain't no such animal". Accordingly, from the point of view of a lawyer looking at the monstrous lineaments of this section, my first reaction was: "There cannot be such a section". It is, I believe, unconstitutional; it is, I am certain, impracticable, and I think that if it is left in its present form it will be disastrous.
Before I deal with the objections to it, I want to make it clear that the idea which probably is behind this section could be adequately worked out in a different manner. From what I can gather, the Minister, or whoever was the spiritual parent of this section, conceived that some of these agreements might be full of technical terms and might involve a certain expert knowledge of the workings of particular trade unions. In so far as there is any validity in that, it would be possible to meet it by a provision that when the interpretation of a registered agreement comes into question the court might refer it to the labour court for their opinion and should have regard to such opinion when expressed by the labour court and returned to them. It could also be possible to arrange that two members of the labour court should act as assessors to the court of law and I will be prepared not to oppose a provision like that because, although I do not think it is necessary, I do not think it would be unconstitutional and I think it could be worked.
But the provision as it stands in the Bill is this, that, no matter what the type of case in which the interpretation of a registered agreement arises, the court must abrogate its peculiar function of law and be bidden by the legal opinions of five laymen, however untenable. Let the Seanad understand this, and this is a matter about which there can be no argument: the interpretation of a written agreement by our law as it stands is now a question of law and nothing else. If a judge is sitting with a jury and any question as to the meaning of a written document comes up, the jury can have no say in it. It is a question of law reserved for the judge, and, up to comparatively recently, when juries were employed in cases of contract and when written agreements were very frequently in issue, no jury of laymen could ever express an opinion on the subject, because it was well established that it was exclusively and entirely a question of law for the court itself.
There is, in fact, nothing of which the courts have been so jealous as their control over interpretation. Interpretation and its rules involve, first of all, questions of grammar and sometimes questions of grammatical construction; secondly, a series of principles derived from a knowledge of human nature; and, thirdly, a series of principles which have been worked out for discovering the intention of the parties to the document. A lawyer can tell accurately, in nine cases out of ten, what interpretation the court will put on a document because it is guided by certain recognised abstract principles of law, but no lawyer can even attempt to make a guess at the meaning which a layman will put upon it because the layman is not governed by those principles of which he is largely unaware and every layman will take a different point of view.
Therefore, if you are to arrive at any certainty, or to be able to forecast the meaning which is to be given to your registered agreements, they must be interpreted by the people who are familiar with these long-worked-out rules and principles which have been found best suited to discover the real meaning of the parties who drew up the documents. Moreover, in a court of law you have your precedents and you have your decided cases. There could be no guarantee that what the labour court decided to-day might not be reversed by another labour court tomorrow. Presumably there will not be reports of their decisions on different cases on the lines of patent reports or otherwise, and, anyhow, one division might vary in its interpretation from another because they would not be guided by regular principles. They would have no rails upon which to run, and when a registered agreement which had been interpreted by a labour court, either because it came before it in the course of its ordinary work or because it was referred to it by the court under Section 33, ceased to be a registered agreement and became an ordinary agreement, binding but no longer registered, and came before the law courts, you would then almost certainly get a third interpretation, so that you are preparing the way for a chaos, not merely a chaos of successive courts giving different interpretations but of contemporaneous courts giving contemporaneously different interpretations.
Let us see further how this would work out in practice. There is practically no class of litigation in which the interpretation of a registered agreement might not come in issue and might not be the kernel of the case. In the case, let us say, of the dissolution of a partnership or the winding up of a company, one of the things to be decided would be the terms upon which employees should be given notice and the amount that would have to be set aside to meet these demands. The most obvious case would be one in which a person was suing in the ordinary courts in respect of some breach of his conditions of employment or for unlawful dismissal. It could arise very easily in a workmen's compensation case, and, what is more, it could arise in an ordinary negligence case before a jury.
Assume the case I mentioned earlier to the Seanad of a workman being injured by another workman in the employment of the same employer. The injured workman sues his employer on the ground that he has been injured by the negligence of a servant or agent of the employer. The employer replies: "I am not liable because the man who injured you was in common employment with you and I rely on the defence of common employment, which is a common law defence." The workman will say: "No; I admit that——"
On a point of order, has the Workmen's Compensation Act anything whatever to do with the Bill we are discussing?
Plenty. That is the trouble.
For purposes of illustration, Senator.
I cannot see it, I must say.
My friend is not a lawyer and that shows the danger of giving the interpretation of these matters to non-legal persons. My friend has also referred to a subject from which I had passed approximately two minutes ago. I was dealing with common law negligence which has nothing whatever to do with the Workmen's Compensation Act. I was pointing out that, in a common law action in respect of negligence, the reply of the workman to the defence of common employment would be that the employer did not have a safe system, or that there was a defect in the works, the tools or something of the kind. There are a number of these defences.
In any one of these cases, when the pleadings had been opened and the action well under way before the jury, it might be found that the answer to the defence or to the reply lay in the correct interpretation of one of these registered agreements and so the action before the jury would have to be stopped and the matter referred for a legal opinion—and it is only a legal opinion, all interpretation of documents being legal opinion—to the labour court which might not sit for a week. You would never be able to get the same jury again, with the result that the whole matter would be held up.
I have given only some instances. I think it is broadly true to say that there is hardly an action which comes before a court in which the legal interpretation of a written document might not come in issue and might not be the decisive matter in deciding the case. In all these matters, you abstract from the man, the judge, to whom our present law gives the exclusive interpretation of an agreement, the power of deciding the case, and you throw it over, to get what is exclusively legal opinion, to a court, from which you carefully exclude a judge or a lawyer. That is a fantastic and an unworkable provision, and I do not believe the Minister, or whoever was responsible for introducing it, can have thought out what its effect would be. It is ousting the jurisdiction of the courts in one of those matters which have always been considered properly to be one of their most exclusively guarded domains.
Let us consider shortly whether or not it is constitutional. I approach this with some hesitation, because I do not like giving a legal opinion that I think it is not constitutional. I believe it would be held to be unconstitutional in the Supreme Court. Rather more light may be shed on it when a case which is at present pending before the Supreme Court is decided. But I am inclined to think that the Supreme Court would hold that it is unconstitutional. If there is a danger of that it is, of course, very much better that it should be referred to the Supreme Court by the President at an early stage, when there is no prestige involved, than that it should come up in the courts in an action, say, between labour and employers, and should then be considered by the Supreme Court and be held to be a victory for one or other of the opposing sides.
I appreciate that the Minister would, naturally, be rather averse to its being referred to the Supreme Court for decision on the question of constitutionality, because he wants to get this Bill through by September 2. If it is so referred, as I think it will have to be referred, unless altered, the Bill will be held up until some time in November, because it will be obvious to anyone, even not a lawyer, that a point of supreme constitutional importance is here involved. Article 34 of the Constitution provides:—
"Justice shall be administered in public courts established by law by judges appointed in the manner provided by this Constitution."
Clearly, the labour court is not going to contain any judge provided in the manner appointed by the Constitution. Later, in Article 34, we find:—
"The courts of first instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal."
The High Court is to have the power of determining all questions of law, and yet you are providing that the High Court, when a question which is peculiarly one of law, comes before it, has to send it over to laymen for determination. I am not overlooking the fact that, later in the Constitution, Article 37 states:—
"Nothing in this Constitution shall operate to invalidate 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."
An unlimited power to give a legal decision in any case on the interpretation of a registered agreement cannot, in my opinion, come within that Article. It is also suggested, and it is now being argued, that the limited functions there, must mean that any court coming under Article 37 must be one from which there is an appeal. There is no appeal in this Bill. It has been suggested, argued and held under analogous words of the earlier Constitution, that the word "limited" suggested that it had to be limited by the fact that there was to be an appeal from its decision, certainly on questions of law.
I do not want to put the matter further than that, but I do not think a provision, which excludes a court of law from considering the interpretation of a document in every class of case in which it occurs, can be treated as merely giving limited functions or powers of a judicial nature to a subordinate body. Whether I be right or wrong in that, it is a view, at least, that is very widely held, and is a matter that is almost certain to be tested. It is extremely undesirable that it should be tested.
Therefore, I appeal to the Minister to say whether he cannot get the essence of what he wants clearly within the framework of the Constitution. The time is a strange one when you are going to exclude a pure question of law from the courts of your country and are going to refer it for what can at best be but a random expression of opinion, to five laymen, however well meaning and intelligent. You may find that these five laymen contain conflicting elements. The Minister pointed out at the beginning that he hoped the elements would not conflict but he based certain later arguments on the ground that that court would contain conflicting elements. They are the people who are to decide a pure question of legal interpretation. Such a flouting of the position of the law courts has not occurred since this State came into being. I know that encroachments have been made, and I know that they have been resisted, but what dignity can you expect or what respect are you going to obtain for your courts of law, if you debar them from deciding a pure legal question, and make them subservient to five persons who may never have read a principle on the subject, have absolutely no training in the difficult and delicate art of balancing contradictory considerations, in reading a document as a whole, interpreting one portion in the light thrown on it by another portion or by another section, seeing that words are given a consistent meaning all through or by any of those essential matters which enable lawyers to get near to what the intentions of the parties were, and to reduce what otherwise would be chaotic and indiscriminate guesswork to a science which admits of some kind of prediction and some kind of predication.
I feel that the section, as drafted, is ultra vires the Constitution. I feel absolutely certain that, if not tested by the President before he signs this Bill, it will be tested before the Supreme Court at an early date. Were it not for the time factor to which Senator Kingsmill Moore referred, I should hope that it would be tested before signature because that is the more dignified way of dealing with it. It seems to me that the section, the need for it and the manner in which the wording was put forward arise from a misconception and a mixture of the different functions of the body which we are setting up. The labour court which we are establishing is, in the first place, to be a conciliation board. Its functions as a conciliation board are to bring together parties to an industrial dispute and try to get them to adjust their views, one to the other. Its function in regard to the interpretation of agreements is based on the assumption that the conditions of employment covered by the agreement are such that the technicality of the employment would be better known to them than to an ordinary court.
I have the greatest sympathy with an endeavour to ensure that, for the purpose of proceedings dealing with an industrial dispute, the interpretation of an agreement should be a matter for the labour court and the labour court alone. They are to have the responsibility of adjusting the position so far as the industrial dispute is concerned and it is correct that, in exercise of that responsibility, they should investigate and adjudge the provisions of registered agreements placed before them. But that is not all that is provided by the section. If the section merely provided for that, I should not take violent objection to it. What is provided by the section is that every iota of interpretation in respect of every registered agreement, no matter for what purpose and no matter if the interpretation is not concerned at all with an industrial dispute, shall be given by the labour court and by the labour court alone. When Senator Kingsmill Moore was speaking, Senator Foran interjected that workmen's compensation has nothing to do with this Bill.
The trouble is that Section 33 of this Bill has brought workmen's compensation cases within the purview of the court which is being set up here. Senator Foran is aware that one of the considerations to which advertence must be made in a claim for workmen's compensation is that the workman did not carry out duties in excess of his contract of service. If that particular question is under review in a workman's compensation claim in which there is a registered agreement, the Circuit Court which is considering the claim must adjourn its consideration until it will have received from the labour court a definition of the contract of service envisaged in the registered agreement. The labour court having given its decision, the Circuit Court comes back and receives the opinion of the labour court upon the registered agreement.
Quite apart from the statutory provision regarding workmen's compensation, there are many common law actions which are bound to be involved by the provisions of this Bill. There is this further difficulty that they will not be cases in which the labour court alone will have to consider the position. There will be cases in which the registered agreement will be only one of many documents. Very few cases arise out of one document. There will be cases in which the agreement registered in pursuance of this Act will be only one of, perhaps, 20 documents to which consideration must be given. That would occur, say, in a case of wrongful dismissal. The result is that the High Court will consider 19 documents and that the labour court will then give its decision on the twentieth. That decision on the twentieth document will be sent back to the High Court and the High Court will ultimately announce its finding. We have heard much on many occasions in this House and elsewhere about the expense of the law. The effect of this provision will be that any litigation in which any of the documents under consideration is a registered agreement will be, at least, three times as expensive as it was before this section was introduced. It will mean that the case will have to be commenced, will have to be adjourned to be dealt with in the labour court and then come back to the common law court.
I earnestly ask that the matter be considered from the point of view of the difference between the function of this body as a conciliation board and as a court interpreting agreements for the purpose of conciliation. The whole purpose of the court is to provide a means of conciliation between parties to industrial disputes. If the Minister wished, he could ensure that, in the interpretation of agreements for the purpose of conciliation, the labour court would be the sole arbiter. That would not have the effect of completely upsetting and ousting the jurisdiction of the ordinary courts in other types of action which have nothing to do with industrial disputes. As the section is phrased, that is not its effect. Its effect will be that a doubtful case under the Workmen's Compensation Acts will become so expensive that the workman will not be able to face it. The costs will go up to three times what they are. Very often in a case of wrongful dismissal the costs are going to be so substantial that the workman cannot face it. This section, instead of injuring in the way that, from the conciliation point of view is hoped to be of assistance to trade unions, to be of assistance to the workers, will work in quite the opposite direction and to an extent to deprive the ordinary man with poor resources of his rights to deal with a case in the ordinary courts of the land because it means shuffling backwards and forwards from one court to the other with all the consequent additional expense.
By all means, if necessary, and I understand it is considered necessary, restrict the interpretation of an agreement in proceedings arising out of an industrial dispute to the labour court and the labour court alone but do not try to superimpose the labour court over the ordinary courts of the land which are provided for the purpose of dealing with the ordinary disputes and difficulties that arise between one citizen and another.
As an individual member of this House, I cannot support this section, because I feel that this Section 33 is repugnant to the Constitution and is therefore invalid as law. When I was elected to this House I was supplied with two books. One was the Constitution and the other was the Standing Orders of this House. I expect that every other member of the House also received a copy of the Constitution. The intention, I take it, was that every member of the House should read our Constitution and I think it is the intention of the Government that every citizen should read our Constitution because the Constitution has been published by the Stationery Office at a popular price of 3d. The intention is that the people of the country should know and be able to appreciate what the Constitution says and what it means. I am merely giving an opinion. It is an opinion which satisfies myself. Whether this section is valid or invalid having regard to the Constitution, is a matter for the High Court if this section should be passed into law by the Oireachtas. I am considering the matter without reference to any extraneous question and am limiting myself to Section 33 of this Bill and the Constitution. I am putting the section side by side with the Constitution and I am satisfied that this section is repugnant to a provision of the Constitution.
Article 15, sub-Article 4 of the Constitution provides:—
"1º. The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.
2º. Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid."
When I turn to Article 34 of the Constitution, sub-Article 3, I find:—
"1º. The courts of first instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal."
What does Section 33 of this Bill say? It says the High Court shall not have power to interpret a registered employment agreement or to determine whether a registered employment agreement applies to any particular person. The Constitution says it shall have power to determine all questions. The Bill says it shall not determine these particular questions there. One is a question of law, the other a question of fact.
For these reasons I am satisfied in my own mind that Section 33 is repugnant to Article 34, sub-Article 3, Section 1º of the Constitution. That applies to the High Court.
Article 34, sub-Article 3 provides that the courts of first instance shall also include courts of local and limited jurisdiction with a right of appeal as determined by law. In my opinion the provision in the Bill would also be repugnant to the Constitution in respect of a matter coming before the Circuit Court, because it has been held by the Supreme Court that the Circuit Court has all the jurisdiction of the High Court save as to amount or as to area, but it has all the jurisdiction of the High Court and therefore it has jurisdiction to determine all questions of law or fact coming before it. Here is a question of law—the interpretation of a written agreement. It is a question of fact as to whether a certain agreement applies to a particular person. Whether it is a question of fact or law, it may arise in a proceeding in a court of law. Section 33 of the Bill says:—
"Any question arising in any proceedings in a court of law as to the interpretation of a registered employment agreement or its application to any particular person shall be referred to the court whose decision shall be final."
In other words, Section 33 enacts, or is intended to enact, that such matters shall not be determined by the courts although the Constitution provides that the courts shall have power to determine them. In other words, the section tries to deprive the courts of the power given to the courts by the Constitution. For these reasons, I am satisfied in my own mind that this section is repugnant to the Constitution and therefore I cannot vote for it.
Listening to Senator Kingsmill Moore I was once again struck by the thought how easy it is, in pursuit of legal theories, to lose all touch with realities. We are talking here about employment agreements. Senator Kingsmill Moore and Senator Sweetman appear to have the impression that employment agreements are drafted as legal documents to be interpreted by lawyers. Have they ever seen one?
And do they think that any employment agreement ever drafted in this country could be interpreted by lawyers and that the people who made the agreements would be satisfied to have their intention as to what it meant determined by the interpretation which lawyers might place upon it? I want to get the Seanad back to consider what we are dealing with here. There have been employment agreements made by the thousand in the past 50 years. I am told that the courts cannot decide workmen's compensation cases or negligence cases or hundreds of other types of cases without reference to employment agreements. Have they ever done so?
I am sure they have come up dozens of times.
And submitted to the legal interpretation of the kind suggested by Senator Kingsmill Moore?
I have drafted some of these employment agreements on the backs of envelopes. I have seen them signed merely in the form of typists' notes of something said in conversation. These are the types of agreements that are governing the conditions of employment and the livelihoods of tens of thousands of workmen in this country and that, we are told, cannot be regarded as valid at all unless they are prepared by lawyers to be interpreted by lawyers. If the difference between an employment agreement as we have known it in the past and a registered employment agreement is that a registered employment agreement must be so framed that it can be interpreted by lawyers in a court of law, so framed that the interpretation which lawyers in a court of law will put upon it is what the framers of the agreement intended it to mean, then there will be no registered agreements. We are setting up here a practical court that will be dealing with these matters and only with these matters, that will have specialised knowledge of the type of problems that will come before them, that will accept these agreements so long as they are clear that the people who made them know what they meant and are prepared to accept the decision of this court as to what they meant in the event of a dispute arising between them out of the agreement. I am told that this provision in the Bill is unconstitutional and unprecedented. I will leave aside the question of its unconstitutionality for the moment. So far from being unprecedented, there is no legislation in the world, which I know of, providing for the establishment of an industrial court or conciliation court, which has not a similar provision.
Not quite a similar provision.
A provision which says that the determination of these courts on the interpretation of an agreement shall be final, and that these courts only shall determine it. I know that, in Great Britain in 1945, the Wages Council Act was passed, which obliges an employer to observe conditions prescribed in national or local agreements. The Act provides that no worker may sue an employer until he has gone to the National Arbitration Tribunal and secured a decision from that tribunal that the agreement is applicable to him.
That is what we are proposing to do here, that this labour court—which is equivalent to the National Arbitration Tribunal in Great Britain—will have the right to decide whether an agreement applies to a particular class of worker or not. Who is better fitted to decide it? Are we to risk the situation that a registered employment agreement will be submitted to a court of law and, having been torn to pieces by lawyers, given a meaning entirely different from what those who framed it intended it to have, and have an industrial dispute in consequence of it?
Change our Constitution, then.
I am prepared to discuss the question of its constitutionality. Though I am not a constitutional lawyer, I say that the provisions of Article 37 of the Constitution were intended by those who framed the Constitution to provide for the establishment of courts of limited jurisdiction of this kind. The Article says:—
"Nothing in the Constitution shall operate to invalidate 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."
Those who put that section in the Constitution intended it to empower the Oireachtas to pass a law of this character. I think they gave effect to their intention in those words.
The Supreme Court may not think so.
I am prepared to agree that lawyers as a class are conservative and impracticable and that, if the question of the constitutionality of the Bill goes to the Supreme Court, it will go with the prospects that a decision contrary to what I have asserted will be made. At any rate, those who have to set out to establish the constitutionality of it will find that the tide is flowing against them, because the court may possibly resent what appears to be an invasion of their functions and the lawyers constituting the courts will be, by their character, reluctant to contemplate what may appear to be an innovation. Nevertheless, I believe that any person arguing in the courts could easily demonstrate that the provisions of the Constitution cover a law of this kind and that no court fairly interpreting the Constitution could hold that this provision is repugnant to the Constitution.
However, we have a practical problem to deal with. It has been suggested that the constitutionality of this provision may be challenged and I have to face the possibility of legal delays in bringing this Bill into operation, before I can get a decision from the Supreme Court that the views of those who have argued otherwise are unsound. I have no doubt I would get that decision eventually, but I am not anxious to face the delay. I have, therefore, reconsidered the section in the light of what I intend to secure and what it is necessary to secure if we are to make this labour court function and keep lawyers out of this business—which is what we are aiming to do. We have had demonstrated to us in the last day or two that, if we let the lawyers loose on it, this whole scheme will fail. It is quite obvious that, if these legal tricks are to be resorted to in attempting to interpret or apply an industrial agreement, no one concerned with the making of those agreements will go within 100 miles of the labour court.
The legal tricks were more honest than some of the Minister's tricks, which he has been trying to put over on us.
The Senator is entitled to his point of view and is entitled to express it, otherwise than by interruption. We are concerned here with enabling practical people to make agreements which will control their relations and to have those agreements given the status of a registered agreement under this Bill. We are anxious to ensure that, when they make these agreements, they will not be concerned with the finer points of phraseology, or the points of grammar to which Senator Kingsmill Moore referred, but will be concerned only to ensure that each understands what the other means and that the court which accepts the agreement is quite satisfied that it will be able to apply it in a manner which will give effect to their intentions.
When I inserted Section 33 in the Bill, I had in mind the danger that, if registered agreements had to be interpreted by courts of law, those courts of law, applying different principles—the principles of law instead of the principles of common sense—would put upon them interpretations different from those which the framers of the agreements would desire or which the labour court would apply, and that industrial disputes might be caused thereby. I, therefore, proposed to require that, whenever the question of the interpretation or the application of an agreement would arise in a court of law, the matter would be referred to this court for decision and the decision of this court would be final.
I can get the same result in another way, by dodging this constitutional issue to which reference has been made. We can frame the Bill so as to enable any citizen at any time to go to the labour court for an interpretation —an official, authoritative interpretation—by that court of a registered agreement. He cannot get an interpretation of an agreement in a court of law, unless there is an action in the court, but he can go to this court at any time and get his interpretation of the agreement. We can provide that, if a citizen has got such an authoritative interpretation of an agreement or in respect of any provision of the agreement, he can produce it in a court of law, if the question of the interpretation of the agreement arises in an action in the court, and that the court of law must have regard to that interpretation which has been placed upon the agreement by the labour court.
I have no objection to that at all.
We can provide further that if a court of law hearing an action finds it necessary to get an interpretation of a registered agreement, it can, if it so wishes, refer the agreement to the labour court for interpretation—in which event the interpretation placed upon the agreement by the labour court will be final. I am getting an amendment drafted to cover these three points.
They do not rule out altogether the possibility of a court of law placing on a registered agreement an interpretation in an individual case other than that which the labour court might place upon it; but that misinterpretation of the agreement by a court of law will be confined to the individual case, as any person who might be concerned by that interpretation can proceed at once to the labour court and get an interpretation there, which can be produced in further cases and must influence the decision of the court of law in those further cases.
That, I think, achieves the purposes I have in mind, which are, first of all, to ensure that, in the main, the interpretation of registered agreements will be a function of the labour court and no one else; and, secondly, to endeavour to ensure that, in the cases where the interpretation of a registered agreement may arise, there will, if possible, be uniformity— uniformity in accordance with the views of the labour court. I think I would prefer the section in the Bill as it stands, but, having regard to the objections that have been raised to the section and having regard to the possibility that insistence upon the maintenance of the section might delay the operation of the Bill, I will produce an amendment on the Report Stage which, if less satisfactory from my point of view, will nevertheless achieve the main aims I have in mind in the section.
I think myself that after denouncing the lawyers the Minister would be wise to take their advice. I think that if a doctor told the Minister that he had a weak heart——
If he told him that he would be telling him an untruth.
—— and if the Minister should then denounce all doctors and say that they were conservative and a queer crowd, it would be just as logical as to denounce lawyers because a lawyer gives an opinion which the person receiving it may not like. I quite agree with the Minister that, under Article 37, he could pass a law empowering the labour court to interpret a registered agreement—that would be a limited function of a judicial nature —and determine whether a registered employment agreement should apply to any particular person. That would be quite within the Constitution, but where I found fault with this section was that it directly deprived the High Court of a power given to it by the Constitution to determine all questions of law and fact arising before it. This section expressly provides that if a question regarding the interpretation of a registered agreement should arise before that court that court cannot determine it, but the Constitution says that it can. As the Minister has indicated that he has probably seen the light, I am not going to say any more except that the Minister ought not to be too hard on lawyers.
In this particular matter I have no axe to grind. I am neither an employer nor a worker within the meaning of this Bill. This Bill will not bring me any advantage. I merely pointed out, as any member of the House is entitled to do, what I conceived to be my duty for the purpose of helping the House to pass a law which will stand the test of the courts if the matter should be brought before the courts at some future date. I ask Senators to remember that while employers and workers may welcome this measure that they may fall out and have to go to law. Well, both have plenty of resources at their command. Yesterday evening Senator Foran said that the trade unions were afraid to have lawyers because lawyers were too expensive, but as far as I know the wealthiest corporations in this country are trade unions. I also know that they are the best employers of counsel and solicitors.
That is perfectly true. The Minister cannot resist a small point at this stage. The Minister has suggested that the principles of law are not the principles of commonsense. Law has been defined authoritatively as being the sifted and crystallised commonsense of the community. I suggest that those who do not appreciate that are themselves deficient in the excellent quality of commonsense. The Minister has now adopted the very suggestions made by me to get him out of a hole. He admits that he was in a hole; he admits that the Bill would have been held up; he admits that it was unconstitutional.
We lawyers have told him a way in which he could maintain the substantial object which he seeks, and yet the Minister is ungrateful to the lawyers. I think that is proof of the practicality and commonsense of lawyers, and I think the Minister owes us an apology. I want to tell the Minister this, that before ten years are up he will appreciate the practical nature of some of the remarks which we made on other sections of the Bill, and that he will have to introduce sections amending the existing ones to meet the views which have been expressed by the lawyers in this House. When he does that, I shall not either laugh or say "I told you so."
I hope that in placating the lawyers the Minister is not going to offend the people who will be mainly concerned in this matter—the employers and the workers. The concessions that he has made to the lawyers may have very serious reactions on the affairs of the court. I thank Senator Ryan for the compliment that he paid to the trade unions by saying that they were good employers. He also said that the trade unions were the wealthiest corporations in the country. They may appear to be but they are not. It is certain that if some people had their way they would not be.
I intend to bring in an amendment on Report.
Question put and agreed to.
Section 34 agreed to.
SECTION 35.
I move amendment No. 72:—
In line 24, page 14, after the word "class" to insert the words "type or group".
Amendment agreed to.
Section 35, as amended, agreed to.
Section 36 agreed to.
SECTION 37.
I move amendment No. 73:—
In page 14, line 49, after the word "workers" to insert the words "or any of them".
I am accepting the amendment.
Amendment agreed to.
Section 37, as amended, agreed to.
SECTION 38.
I move amendment No. 74:—
In page 15, line 19, after the word "court" to insert the words "by any person having an interest in the making of the establishment order."
The question here is who is entitled to make representations. Will the people who make representations be entitled subsequently to appear as objectors?
I think the amendment would have no effect. The court will obviously not consider objections which are frivolous or objections made by persons who have no direct interest in the matter.
Amendment, by leave, withdrawn.
Sections 38 to 42, inclusive, agreed to.
SECTION 43
I move amendment 75:
In page 16, line 36, to delete the word "committee" and substitute the word "court."
A number of these amendments hang together. My view of the matter is that the committee, having framed a set of conditions governing wages and conditions of employment in the trades to which they relate, will submit these proposals to the court. The court will examine them and send them back if it thinks fit, and ask the committee to re-examine them in the light of the original proposals. In either event, the committee will resubmit proposals in their original form or in their amended form. Having got them, the court then proceeds, in accordance with paragraph (b), to give notice that the proposal has been submitted and to tell the public where copies may be obtained. It also intimates that representations regarding the proposals may be submitted to the committee. As I understand the Bill, these proposals have left the custody of the committee. They are in the custody of the court. I think, therefore, it is obvious that observations or objections regarding the proposals should be sent to the court, not to the committee.
Going further down, we discover that the committee may resubmit the proposals to the court, having resubmitted them already. The documents are in the possession of the court and the court is there to consider objections regarding them. How the draftsman gets it into this state, in which he provides that the committee may resubmit to the court documents which are not in their possession, baffles me. I think that if the Minister will look at the British Act, on which this is framed more or less, he will find that this section is in conflict with the proposals in the British Act. The British Act goes on a different basis because it is the Minister, not a court such as ours, that confirms the orders.
Section 5 of the Wages Councils Act in Britain covers the same ground as is covered here in Section 43. If the Minister will look at that section, he will find that there is a conflict between the draftsmanship in the two sections and that his own section is rather difficult to reconcile with the commonsense of what is happening. As I have said the proposal to resubmit a document which has been already submitted and resubmitted, and is in the custody of the court, is contrary to commonsense.
This provision is based on the Trade Boards Act now in operation. What we are doing in this part of the Bill is to amend the powers of the trade boards and to transfer to the labour court functions in relation to trade boards now exercised by the Minister for Industry and Commerce. The procedure set out in Section 43 is the procedure now followed when new rates of wages for trade boards trades are proposed by a trade board, with this exception, that the trade board submits them to the Minister whereas in future they will submit them to the court. I do not think we can depart from that. The procedure is clear. The committee, which consists of an equal number of employers' and workers' representatives with a neutral chairman, draws up its proposals and the proposals are sent to the court. The court considers them and it may refer them back, with regard to certain aspects, to the committee. The committee will then reconsider them and again refer them to the court. Having reached the point at which there is agreement between the court and the committee as to the proposals, the proposals are published and any member of the public can then make representations to the committee concerning the proposals. If the committee having received such representations desire to amend the proposals, they can so amend them and submit them again to the court.
The procedure that is now followed is that I get proposals from a trade board to establish minimum rates for a particular trade. On the majority of occasions I accept these proposals but sometimes I may refer them back for reconsideration of a particular aspect of the proposals.
The proposals may involve differential rates for rural areas as against urban areas, and that I may regard as undesirable, or they may not provide for such differential rates when I may consider differential rates desirable, and I ask the committee to reconsider the proposals on these grounds. Again, the proposed rates may be out of line with rates in a somewhat similar industry and that I may regard as undesirable. Not infrequently trade boards have amended their proposals either because of a request from me to have them reconsidered or because of representations received from some interested party after their publication. Even if a case could be made for a better procedure, which I doubt, nevertheless I would urge that this procedure should be maintained. We are making certain changes at the moment, but I think we should not make any changes which are not necessary to achieve the purpose we have in mind. All these trade boards are familiar with this procedure. They will have to reconsider the orders in force for a number of trades and they are now given extended powers. They may make recommendations regarding conditions of employment as well as wages and they may make proposals to establish a minimum weekly wage as well as minimum rates of wages. No doubt they will be busy for some time in the future reexamining the present position in the light of these new powers.
When they have proposals to make they will make these proposals to the court and the court will deal with them as the Minister has dealt with them up to the present. I would strongly urge that the procedure should be left as it is because I think it undesirable to change it. I would regard these committees, which are specialised bodies with a very intimate knowledge of particular trades, as better fitted finally to decide what conditions should apply than the labour court. In fact, I think the labour court would be reluctant to change and modify the proposals from a committee without consulting the committee.
I agree with the Minister, but if he reads the section from (a) to (d) I think he will find that it does not make sense.
It does. May I explain the procedure? The committee make proposals and send these proposals to the court. The court may refer back the proposals to the committee because of some objection to some of the proposals on the part of the court. If the court does not refer them back or, if having referred them back, the committee resubmits them with modifications as proposed by the court, they are then published. Any person who desires to make representations concerning the proposals can then make them to the committee. The committee considers these representations and can amend the proposals in the light of such representations and again resubmit them to the court. The court can then, if it accepts the proposals, make an order which brings the new rates into operation.
There is one missing link in the chain which I cannot grasp. The Minister has correctly described the submission of proposals to the court, the resubmission of the proposals to the court, the publication of notices and the submission to the committee of objections, but the document is then no longer in the hands of the committee to make any amendment whatever. It is in the possession and the custody of the court. How the committee can then take cognisance of the objections made to the committee and again resubmit the documents which never went back to them is what I cannot understand.
The Senator is misled by the use of the term "document". It is the proposals that are under examination and the committee has the proposals before it. The court will not make the order that finally brings the proposals into force until the committee has reported to it following the statutory period after the publication of the notice that it has received no representations at all, or that such representations as were received were, in its opinion, of no consequence or, alternatively, that it has amended the proposals in the light of these representations.
I certainly cannot understand this method and it does not correspond with the method in the British Act.
The British Act is different, it is true, but we have adhered as closely as possible to the Trade Boards Act endeavouring to amend it only in so far as the present procedure may involve a fairly considerable delay. The new provisions do not involve that delay but nevertheless they follow the same general outline.
Amendment, by leave, withdrawn.
Amendments Nos. 76 to 79, inclusive, not moved.
Section put and agreed to.
Section 44 agreed to.
SECTION 45.
Question proposed: "That Section 45 stand part of the Bill."
One conclusion I have come to from hearing the debate is that we have a new set of experts added to the hierarchy, namely, trade union officials. You may talk about lawyers and doctors and accountants being the only experts, but I think trade union officials are fully qualified to act as experts on complicated law. One who ordinarily proceeds largely by what he considers to be his own commonsense may hesitate to display his ignorance of all these technicalities and the result is that I may find myself led down the garden path when the Bill becomes an Act. I want the Minister to enlighten me on a matter drawn from my ordinary everyday life. I owe my economics of life largely to the fact that I have avoided all the impositions of organised capital and labour in my limited sphere of occupation in the management of an estate. I find men willing to join with me in work and in avoiding all the unions' exactions.
Incidentally, I am interested in the joint labour committees because they appear for the first time to recognise the employer. So far as I can see, they are to be committees of labour and employers. The employer is given the dignity of being a labourer. I want to know from the Minister whether a stage will be reached under the operation of these labour committees where, if I employ, by agreement, a certain person who works at a number of trades, what we know roughly as a handyman, who is as anxious to avoid the unions as I am, we will be prohibited from making our own arrangement, that we will be forced into the set-up brought about by these joint labour committees. I want to know will we be allowed to make our own arrangement and not be roped in by a labour committee.
These joint labour committees, which were formerly trade boards, were established originally for what were known as sweated trades. I am sure Senator Sir John Keane has no association with a trade of that kind. They were set up to establish minimum rates of wages in occupations where, by reason of lack of organisation amongst workers or employers or other circumstances, sweated conditions existed. It is true that many of these trades have long since passed out of that description and in future the circumstances under which a committee may be set up will be somewhat different from what they were in the past. But, in the main, it may be assumed that these committees, with the special powers they have, will exist only where, by reason of some difficulty of organisation either on the side of the employers or on the side of the workers, there is no other effective means of establishing regularised conditions of employment.
May I ask the Minister for some guidance on a matter to which I referred him in connection with a previous Bill? I drew attention to the conditions of certain types of employees in hotels.
One of the changes which are being made here is that a committee may be set up for any class of worker. In the past a trade board could be set up only for trades. Trade boards could not be set up for classes of persons like messenger boys who were employed in a variety of trades but were classes who did not constitute a trade. One of the changes being made here is that, if it is deemed desirable by the court, a committee may be set up for a class of workers, such as messenger boys, hotel workers, typists, solicitors' clerks, or persons who, in the past, were not held to constitute a trade and for whom a trade board could not be therefore established.
For the benefit of Senator Sir John Keane, I want to put this question to the Minister. If a trade union, say, in County Waterford gets a standard rate order from the court will Senator Sir John Keane be able to employ a handyman to do bricklaying, painting, plumbing, and so on, or will he have to pay the standard rate of wages? That is really the question about which the Senator is concerned.
He will have to comply with the terms of the Bill.
Question put and agreed to.
Sections 46, 47 and 48 agreed to.
SECTION 49.
Question proposed: "That Section 49 stand part of the Bill."
I should like to ask who will prescribe the form of notice referred to in sub-section (2).
The Minister will still be responsible for the enforcement of the wages and conditions prescribed by the joint labour committees.
I understood that from the definition section, but it seemed to me that it was passed over to the court.
The Minister transfers to the court his functions in relation to the making of the wages Order; but, once the Order is made, it becomes his function to enforce it, to prosecute employers who refuse to comply, prescribe notices, employ inspectors, and so forth.
Question put and agreed to.
SECTION 50.
Question proposed: "That Section 50 stand part of the Bill."
I should like the Minister to consider the following matter, if he has not considered it before. There are provisions whereby if, what I call, a lower employer is prosecuted, he can call in the higher employer on an allegation that it is the higher employer who is responsible. That is all right. But, when you come to sub-section (4), which has a provision that the inspector can skip over the lower employer and go direct to the higher employer, surely there should be a similar provision whereby the higher employer can say: "It was not my fault; it was the fault of the lower employer" and have him brought before the court to answer for it. I have not drafted an amendment, but I do not see how this section will work. It does seem to me that if, by earlier sections, where the immediate employer is impleaded, he can call in his superior employer, by a parity of reasoning, where the superior employer is impleaded directly by the inspector, he should be allowed to plead that it is not his fault but the fault of the immediate employer who should be called upon to answer and be liable to be cross-examined and prosecuted.
I think the converse is the case. The person on whose premises the work is done apparently is the employer and it is the employer who is sued. He may say: "It is not my fault; it is the fault of the intermediate man."
I would ask the Minister to consider the matter.
I will look into it. The section is really transcribed entirely from the existing Trade Boards Act. It is one that has been worked over and over again.
I find it difficult to see how this will work out. It may be that in practice it is fairly satisfactory, but it looks as if there ought to be a correlative right.
Question put and agreed to.
Section 51 put and agreed to.
SECTION 52.
Question proposed: "That Section 52 stand part of the Bill."
I wish to draw attention to the fact that somebody omitted inserting (1) for the first sub-section.
That is right. That will be attended to.
Question put and agreed to.
Sections 53 to 56, inclusive, put and agreed to.
SECTION 57.
Question proposed: "That Section 57 stand part of the Bill."
Whatever is done on the amendment to Section 33 will presumably apply to Section 57.
Section 57 is not half so objectionable, but it might be better if it were altered, as otherwise we might be likely to get into trouble.
I did not get clearly the Minister's reply to my point about the status of the general State worker—what the position of the general State worker will be under this Bill. I am told that if there is a standard wage fixed for a bricklayer, the man who does a number of jobs in the building trade in a city under an ordinary contractor will be in a peculiar position. Each job would be the function of a separate tradesman. He might, for instance, do concreting, slating and he might even do a little bit of carpentry, bricklaying or plumbing. He would be held to be paid any one of those rates by law. An inspector could come along and say that that man was doing plumbing or bricklaying and he would have to be paid accordingly.
Senator Sir John Keane is apparently referring to the part of the Bill dealing with joint labour committees. He can take it as certain that there will not be a joint labour committee for carpenters or bricklayers or any highly organised workers of that kind.
I suggest that does not arise on Section 57, which relates to a determination by a court of law.
It relates to a determination of certain questions. This is a question. I am told I am out of order in raising the matter on this section. I assume I will be in order in raising it on Section 58.
Question put and agreed to.
SECTION 58.
I move amendment No. 80:
In sub-section (1), line 60, page 21, to delete the words "a male" and substitute therefor the word "an".
Will the Minister agree to this amendment? It seems a reasonable one. I do not want to take up the time of the House discussing it.
Perhaps I might explain this section. I said in the Dáil that I regretted putting it into the Bill. Originally I thought it would serve a useful purpose, and I still think it will, but it has been the subject of so much misunderstanding and to some extent so much misrepresentation, that I feel, as it is not so essential to the Bill, it might have been wiser to have left it out.
The origin of the section is that under the Wages Standstill Order, which operated during the emergency, the case was frequently discussed, with organisations representative of trade unions, of general workers in small towns. It will be appreciated that under that Order any class of workers could, through their representative, apply for a standard rate Order which could be made by the Minister on the recommendation of the Wages Tribunal or on his own initiative, purporting to set out the rate of wages actually paid to that class of worker in April, 1941. It became the standard rate to which bonuses were added as bonus Orders were made. In the case of the general worker in the small town there was no organisation of workers or employers and we found that if we made a standard rate Order for such a worker, basing that rate upon the wages actually paid by the best employers, who might be few in number, to the workers employed by them, who might be a minority of the workers concerned, the general effect was that all other employers of general workers in that area brought their wages up to the level of that prescribed in the standard rate Order.
There was no compulsion on them to do so. There was no legal authority behind the standard rate Order, but the making of the Order had that moral effect, that every employer felt he would be pilloried if he did not pay the rate prescribed in the standard rate Order. So advantageous was that procedure to those unorganised general workers in local towns that I considered we should endeavour to carry it into permanent legislation and that is the origin of the section.
This section gives the court power to determine a standard rate of wages for any area which, in the opinion of the court, should be paid to a male adult worker performing in that area unskilled work for a normal working week. The order made by the court prescribing a standard rate of wages would not have any legal force behind it. There would be nothing in the Bill which would require an employer to pay that standard rate, but it was considered that if a rate of that kind was made it would operate not merely to give a certain moral authority to the rate and secure its payment to general workers, but it would also act as a yardstick by which the wages of other classes of workers, juvenile and female workers and workers requiring some degree of skill, could be related to the general rate.
The purpose of the section has been lost sight of in many of the discussions that took place. I was asked to amend the section so as to give the court power to determine what amount of food an average family would require to maintain itself in a condition of working efficiency and relate that amount of food to the wages paid. I was asked to give the court functions which it could not possibly discharge; they would have to make inquiries and carry responsibilities which they should not be asked to carry.
Senator Foran has in mind something more than I intended. If the court fixes a standard rate for one area and says: "We think that is the wage that should be paid to an adult unskilled worker," all the other rates can be related to it. Local negotiation and bargaining are facilitated by the existence of that rate. The court does not purport to say: "This is the rate which we think is a fair rate, or one which will maintain a worker in the degree of comfort which we think he should have." It determines the rate in the light of the actual conditions; the rates actually paid in that and adjacent areas. It will have so close a relation to reality that it will be accepted. If the rate is not in close relation to the realities of the area, then it will be ignored by everybody. It must be framed on a realistic basis if the whole scheme is to work, but the idea is to put on the court the obligation to determine that one rate and to let that be set up as a standard by which the rates for other classes of workers, females, juveniles and workers with a certain degree of skill, can be determined.
I wonder is the Minister discussing the amendment on the Paper. All I ask in the amendment is that this should apply to female workers and young people of 18 years and over.
I know; that is precisely the point I am getting at. If we go further than this and ask the court to decide what proportion of an adult worker's wages a female or juvenile worker should get, we are putting the court into a controversial area where I do not think we should put it. If we do put it into a controversial area, the court's natural inclination will be not to use the power at all. If we give them the one simple task of determining the standard rate for adult male workers, local practice will relate the wages for female and juvenile workers to that rate.
There is no difference between us. We merely ask that the word "adult" be deleted so that the provision would include the people I have in mind. There is no reason why they, as citizens, should not have the same rights as a male worker.
The Senator appreciates that this rate is not legally enforceable. It is merely a standard for the area and does not confer any rights upon anybody.
I hope the Minister will not be deflected from his purpose by the type of criticism which will be raised in relation to a section of this kind and that he will retain this section in the Bill. It is one of considerable value. As nothing in the Bill is regarded as final or settled for all time, no doubt this section is not in its final form, and no doubt many proposals made in the Dáil for extending the power of the court or for causing the court to have regard to various matters to which under the section it is not required to have regard will be adopted as time goes on. These practices have been adopted elsewhere and I have no doubt that this is the beginning here.
Properly speaking, it is not a beginning, because I have a very vivid recollection that a question of this kind arose 26 years ago in the City of Cork when Tomás McCurtain was Lord Mayor. He was confronted with a number of strikes. As the Minister remarked a few moments ago, they were the aftermath of the war. Strikes were threatened in many industries and Tomás McCurtain, who was the newly-elected Lord Mayor, invited a small committee, which he regarded as being representative, coming from different organisations, to meet and to find out what was the minimum sum upon which a man could maintain himself, his wife and three children in Cork City. He said he was not concerned with what it would cost to maintain a family in England, in Dublin or anywhere else, except Cork, and he thought that if he could get a standard rate, something agreed upon by all parties as a minimum figure, he probably could settle strikes.
Tomás McCurtain did not live to see the result of that inquiry, but his successor did. The inquiry was highly successful, and I remember that the figure of £3 10s. 0d. a week was arrived at as the minimum figure on which a man could maintain a family in Cork City in the autumn of 1920. When the decision was made known, there were three important strikes in Cork and the three were settled within a week by the employers agreeing to accept the recommendation of this informal committee. This proposal has wonderful possibilities and I ask the Minister not to be deflected from his purpose and to retain the section in the Bill.
After that historical account, I should like to come back to the amendment and to the section. The amendment merely seeks to delete the words "a male." There can be no ambiguity about it—it would include all adult workers and give women the same rights as men.
But no rights are conferred by the section.
The same claims, if you like. If a male adult worker is entitled to recognition, surely a female worker is entitled to recognition. This deliberately cuts out the female worker by referring to "a male adult worker." If we drop the word "male," the section will embrace all workers and surely there can be no ambiguity about it. It would equalise the position and give what we believe the Constitution gives—the same rights to women as to men.
This section does not establish a rate of wages. It establishes a yardstick and serves the purpose the Senator has in mind just as fully as if the amendment were adopted.
Is there any reason why we should not say so?
I think it is desirable that the court should limit itself to determining the standard rate for a male adult worker and let other rates be related to it.
Why not include the female adult worker? What is the reason? I have not got any reason why the female adult worker should be excluded from the same privileges, rights or recognition as the male adult worker.
I think the Senator misses the point. We are not establishing any privileges or rights. We are merely establishing a standard which will facilitate local negotiations or individual contract-making, whether by adult male workers or adult female or juvenile workers, who can base their bargains with their employers on this standard rate, either requiring that they get more than it or less than it, or the standard rate, or some variation of it. That is all we intend to do, and therefore it must be one rate.
Yes, for the male, and we deliberately cut out the female.
We are not cutting out the female. We are not depriving the female of any advantage or any right.
Why not put her on the same footing as the male?
If an employer wants to pay an adult female worker the adult male rate, it is open to him to do so, but we are asking the court to decide this standard on the basis of the requirements of the male worker.
Amendment, by leave, withdrawn.
I move amendment No. 81:—
In sub-section (2), page 22, to add to the sub-section the following words:—
The court shall also have regard to the desirability of raising the general standard of wages to a level which will enable a worker to maintain himself and his family in decent comfort.
I have expressed my objection to this proposal. We should try to avoid any vague references of this kind because I think the effect of inserting them will be to frighten the court off attempting to use this power.
Amendment, by leave, withdrawn.
Question proposed: "That Section 58 stand part of the Bill."
Does this section give the court power to set up a committee of its own to determine what should be the standard wage for a given area? Senator Duffy has referred to what took place in Cork some 26 years ago. Before labour courts were established in Australia and New Zealand, investigations took place, at the instance of the Governments there, to establish what should be the standard wage for a man, his wife and his child, and related to the number of children in the family. What I want to find out now is whether the Minister envisages that this section might give power to this court to establish what should be the standard rate for a man and his wife and children—in short, a family wage—in a given area, because, if it does not do so, this pure method of empiricism will not lead us very far, nor will it result in giving very much satisfaction to the areas mentioned in this clause.
I should like to think it was the Minister's and the Government's intention, having with great care formulated this Bill to establish a labour court here— in one sense, putting the cart before the horse, but, in another, doing a very useful piece of work—to go on to say that the minimum wage on which any person should be expected to live under a given set of cost-of-living conditions was so and so, referring to a man, his wife and child, with an addition for each other child—a family wage.
Does the Minister visualise something like that taking place as a consequence of this Bill? If he does, I think it is something we should all welcome. I would like to hear what the Minister has to say with regard to the section. I mentioned this matter on the Second Reading, but I should like to have a further explanation. I do not want at this hour to deal with what takes place in other countries in regard to the establishment of standard wages, but I want to know if the Minister visualises that the court may have power to establish what should be a standard wage, for a man, his wife and child.
Arising out of the Senator's remarks, the Minister, I take it, is aware that in rural areas there is machinery for fixing agricultural wages. I can see a great deal of confusion resulting if we are to have a labour court prescribing one rate of wages and the Agricultural Wages Tribunal, or whatever its right name may be, fixing another rate. The matter cannot be disposed of in such a rough and ready or ill-considered manner as Senator Kyle seems to suggest. The two bodies must be, at least, harmonised and reconciled in their activities. I understand I am in order on this section in dealing with another point which affects nearly every small farmer in the country. They employ "handy-men"—call them what you like—who are unskilled, but yet are far more skilled than many high-geared trade union employees. They are employed under an agreement in writing or on an understanding with the farmers. Perhaps they are going to "live in" and get milk and food, but they feel satisfied to carry on in that way. We do not want to have officials connected with trades intervening there if we can keep them at bay. We may find an inspector coming along and laying down provisions in an Act which the ordinary countryman cannot understand, and telling him: "You have to pay this man such-and-such a wage or we can prosecute you if you do not". Can the Minister say if we can find ourselves in that position under this Bill?
I take it that Senator Sir John Keane's suggestion is that inspectors can go around the country warning people that they would be prosecuted if they did not pay a certain wage or that if the Senator does not carry out the terms of the Bill, he may be sent to jail. He may be told that we have passed this Bill and that he was a party to its passing. The Senator knows quite well what the conditions of the Bill demand from him. He is now trying to induce the Minister to make a statement, which will be on record, watering down the provisions of the Bill, so that when an inspector comes around with a warning for the Senator's arrest, if he does not comply, he can tell him that the Minister said that nothing is going to happen under the Bill; that this Bill was largely eye-wash; that the court does not come into it; and that if he does not go near the court it will be all right. What I am afraid of is that this section may not be used. I prefer to see it used, because there are large areas of the State in which there is no effective machinery for regulating wages or determining what should be a living wage.
It is true that in many trades there is no effective machinery to regulate wages, but that situation is covered now by the new provision for labour committees so far as hotels, brush-making, and clothes trades are concerned. These are mainly women's trades. There will be machinery in the labour committees part of the Bill, but there is no machinery to determine what is the proper rate to pay to a man doing many kinds of work. There is no method of determining minimum rates. It is true that if labour is scarce there is not much need for any method to determine what is the minimum rate, because the worker can then sell his labour at the price he fixes. That is the position so long as there is a scarcity of labour, but once labour becomes surplus to demand, there will be need for active work being done in such circumstances. I should like the Minister to impress upon the court that this is a function which is of considerable importance, and one that ought to be developed in an active manner, and not be left just to be done sometime.
Let me assure the Senator that there was no guile in the question I asked. I am not simple enough to think that I can confront an inspector with a report of this debate and satisfy him. I think Senator Duffy has answered the question about the men I mentioned being unorganised. We have this satisfaction, that there is one small portion of the community where freedom of contract is still allowed to remain.
In reply to Senator Kyle, the position in Australia, as I understand, is that they have a national minimum rate legally enforceable. It is not contemplated that we should have such a rate here. It is intended, however, that these standard rate orders for certain areas may be made. The only force behind them will be a moral force, not a legal force. In determining these standard rates, the court will have regard to the conditions actually prevailing. I am not asking them to take into account any social theory or any dietetics theory, except to get an improvement in the conditions by establishing a rate which they think will be observed. In answer to Senator Sir John Keane's question, he will not be required to comply with any particular rate of wages unless the worker concerned is covered by a registered employment agreement, or the worker concerned is covered by a joint labour committee, or unless the worker concerned is covered by a standard rate, or recorded in Part VII of the Bill.
Section 58 agreed to.
SECTION 59.
Amendment No. 82 not moved.
I move amendment No. 83:—
In sub-paragraph (a), line 16, page 22, to insert after the word "class" the words "type or group", and to delete all words after the word "employers" in that line to the end of the sub-paragraph.
Amendment agreed to.
I move amendment No. 84:—
In page 22, lines 30 and 31, to delete the words "an association" and substitute the words "a qualified joint industrial council".
Two or three of these amendments hang together and the question is one of using an alternative phrase for the definition. In Section 59, it is stated that "the expression ‘qualified joint industrial council' means an association of persons which complies with the following conditions..." Instead of using the words subsequently in the Bill in relation to a registered joint industrial council, we should use the term which has just been defined.
It cannot be registered unless it is qualified, so that things that are equal to the same thing are equal to one another.
Amendment, by leave, withdrawn.
Section 59, as amended, agreed to.
Section 60 agreed to.
Amendments Nos. 85 and 86 not moved.
Sections 61 to 63 agreed to.
Amendment No. 87 not moved.
Sections 64 and 65 agreed to.
SECTION 66.
I move amendment No. 88:—
In page 23, line 9, to delete the word "either"; and at the end of line 11 to add the words "or a manual worker employed by a local authority".
This is an important amendment in view of the discussions which have taken place and I should like to know the Minister's reaction to it. The wages of a number of craftsmen will be regulated by agreement before this court. Are the men for whom I seek to provide to be denied the benefit of access to the court?
I cannot accept the amendment. The position is, as I explained earlier, that there is nothing in the Bill which prevents this court being utilised even in a dispute affecting employees of a local authority where all parties so agree. Under the law at present, however, the remuneration of local-authority employees is subject to the sanction of the Minister for Local Government and Public Health and it is not practicable to have a position in which two Ministers would have different functions in relation to the same matter. This question was fully discussed in the Dáil and here and I indicated that I could not agree to the extension of this Bill so as to cover either State employees or local government employees. The whole set-up of this scheme is based on the assumption that it will not apply to those classes of persons. If it should be considered at some later stage that a tribunal exercising similar functions in relation to the employees of local authorities should be established, it would require to be set up on a somewhat different basis and with somewhat different personnel.
I should like to raise the constitutional aspect of this matter but, as the constitutional lawyers are not here, I would not be competent to argue it. I submit that a constitutional question is involved if we are to deprive certain sections of the community of the right to apply to this court for redress. The people who profess to be competent to argue such questions are not here but I think that that issue will be raised in the law courts.
I doubt that the position is as the Senator states.
Amendment, by leave, withdrawn.
Amendment No. 89 not moved.
Section 66 agreed to.
SECTION 67.
I move amendment No. 90:—
At the end of sub-section (3), in page 23, to insert the following words: "unless the court is of opinion that the dispute is likely to lead to a stoppage of work".
A rather peculiar situation exists under sub-section (3) in relation to the Electricity Supply Board. The sub-section provides that the court shall not investigate a dispute to which Section 11 of the Electricity Supply Board (Superannuation) Act, 1942, applies except at the request of the tribunal established under Section 9 of that Act. It will be observed that, in other sub-sections, the court is precluded from investigating a threatened dispute unless it is of opinion that the dispute is likely to lead to a stoppage of work. In any other case, the court may step in if it is satisfied that the dispute may lead to a stoppage of work and investigate the circumstances which have led to the dispute. I cannot understand why that is not followed in the case of the Electricity Supply Board, in view of the limited functions of the tribunal under Section 9 of the Electricity Supply Board (Superannuation) Act. Section 11 of that Act provides that every dispute relating to the claims of manual workers who participate in the superannuation scheme or relating to other disputes may be referred to the tribunal set up under that Act at the request of the board or of any other party. The tribunal set up under that Act cannot itself investigate a dispute relating to employment in the Electricity Supply Board unless requested to do so, so that, if the board and the staff decided to have a fight, the tribunal set up under the Superannuation Act would be unable to intervene. I doubt that the tribunal has any rights except in relation to manual labour. I do not think that it has any right to investigate a dispute in relation to the clerical or engineering employees of the Electricity Supply Board. Having regard to the limited functions of the tribunal set up in relation to the Electricity Supply Board, I cannot understand why no provision is made to enable this court to investigate a dispute there.
The tribunal established under that Act is similar to this court. It is set up by statute and is constituted on somewhat similar lines. It consists of a chairman, appointed by me, a member nominated by the board and a workers' representative, elected at an election held in accordance with regulations I have made, at which the electorate is the entire staff employed by the board. That tribunal has functioned extraordinarily successfully and has given satisfaction to everybody concerned. I think that it should be quite clear that the court, under this Bill, is not a court of appeal from that tribunal in matters in which there is a dispute affecting the conditions of employment of any worker or section of workers employed by the board. That is why it is provided here that only where the tribunal so requests can this court intervene. It should not be able to intervene unless the tribunal so requests. The provision in the other sub-sections of this section which gives the court power to intervene in a dispute where a stoppage of work is likely to emerge out of it even though there may be a joint industrial council or negotiating body, has its origin in a suggestion made in the Dáil that in certain cases where existing negotiating machinery, either machinery set up by agreement, or a joint industrial council, or some other established method of negotiation had been utilised and had failed, it was undesirable to leave it in the position that one of the parties had to approach the court before the court could intervene because one of the parties might be reluctant to do that, feeling that it was an admission of weakness, that by taking that action it would put itself in a wrong tactical position for subsequent negotiations and that consequently the court should be given power to interfere of its own initiative in such circumstances where a stoppage was likely to emerge. That does not arise in the case of the Electricity Supply Board. The possibility of a dispute leading to a stoppage would not develop until after the tribunal established there had dealt with the matter and presumably, therefore, the tribunal would be fully alive to the danger of stoppage and could, if they thought fit, refer the matter to the court.
The Seanad should bear in mind that there are other provisions of that Act relating to the Electricity Supply Board which would in fact operate really to prevent a dispute developing to the point of a stoppage of work. It was in consideration of the fact that these other provisions really preclude the stoppage of work that the independent tribunal was set up so that the workers who might have grievances would not be deprived of a means of having them adjusted.
In certain circumstances the other provisions which the Minister referred to would not prevent a stoppage of work.
In certain circumstances they might not. Therefore we give the tribunal as a whole power to invite the intervention of the court but I think it should be the tribunal as a whole. Otherwise, you will get a position where this court would be regarded as a court of appeal from that tribunal, which would be undesirable.
Am I right in stating that only the manual workers are covered by the Electricity Supply Board Act?
It is only the workers covered by Section 11 of the Act that are affected by this sub-section. So far as the Bill as a whole is concerned, the employees of the Electricity Supply Board are in the same position as any other class of employees.
Amendment, by leave, withdrawn.
Question proposed: "That Section 67 stand part of the Bill."
Am I correct in thinking that the power of appointing technical assessors applies also to Part VI?
Question put and agreed to.
Section 68 agreed to.
SECTION 69.
I move amendment No. 91:—
In sub-section (1), page 23, line 52, after the word "officer" to insert the words "or some suitable person".
I am endeavouring here to make it clear that in the case of mediation the court ought not to be restricted merely to a conciliation officer, that it should be free, in fact there should be a directive, to utilise the services of any suitable person. The House is familiar with the fact that, in many parts of the country, particularly in Cork, there has been experience of certain public men being interested in bringing about harmonious relations between employers and workers over a period of years. For many years there was a well-known Capuchin who was regarded as the negotiator in every dispute. In Limerick a doctor was made chairman of an arbitration board which for a period of ten or 12 years functioned effectively in preventing disputes and securing early settlement where disputes took place. There ought to be, not merely permission for the court to use the services of people of such standing to bring about negotiation, but in fact there should be a directive in the Bill indicating that it is the view of the Oireachtas that the services of such people should be availed of in suitable cases.
The court will have power only to appoint one of its own staff, a person whom it controls. There is nothing in the Bill which prevents parties to a dispute availing of the services of any person.
I am trying to get that authority in the Bill.
You cannot give the court power to appoint another person to act as conciliator in a trade dispute. It has power to appoint one of its own staff, which it controls. There is no need to put in the Bill a provision which would make it possible for somebody else to act because there is nothing in the Bill which prevents it. But you cannot give the court power to order Professor Alfred O'Rahilly to act as mediator in a trade dispute.
I did not contemplate that but I did contemplate that the court ought to understand that if they consider some person who is not a member of their staff might effectively intervene that they could avail of his services.
That is not prevented. In fact it is quite conceivable that the conciliation officer, endeavouring to get an agreement by negotiation, might avail of the services of a local person as a mediator or even as arbitrator if arbitration was agreed to.
If Senator Duffy will refer to the next section, 70, he will see that the court may appoint any person with the consent of the parties to act as arbitrator.
Amendment, by leave, withdrawn.
Section 69 agreed to.
SECTION 70.
Question proposed: "That Section 70 stand part of the Bill."
There is one word here to which I referred yesterday, the word "itself". The court may itself arbitrate on a dispute. Is that a court of five persons or is it a division of three persons?
It could be either. Ordinarily, reference to the court means a court of five persons, except the chairman decides that a division is necessary, in which case each division has the power of the court and the functions of the court.
Then the position, I take it, is that the word "itself" in this section may mean five or may mean three?
Question put and agreed to.
SECTION 71.
I move amendment No. 92:—
In sub-section (2), page 24, to delete lines 34 to 38, inclusive, and substitute the following:—
(iii) make an award appropriate to the case (having regard to any registered employment agreement within the meaning of Part III of this Act which relates to analogous employment in the district) setting forth the conditions on which in the opinion of the court the dispute should be settled.
This is the case in which the court intervenes where there is an unauthorised stoppage of work and, having intervened and made investigation, there are several courses open to it. It may, under paragraph (c) (iii), make an award which shall not be inconsistent in its terms with a registered employment agreement setting forth the conditions on which, in the opinion of the court, the dispute should be settled. I have some difficulty in following what is meant by that. I am assuming, for instance, that a strike takes place on some job remote from cities or large centres in which agreements are usually made. Let us assume, for instance, that a dispute were to occur at Ballyshannon in connection with the undertaking of the Electricity Supply Board. I am assuming all the time that there has been no registered agreement covering the workers or the employers. A dispute takes place. There is an unofficial strike. It may be a new organisation of workers formed ad hoc for the purpose of this job.
The court is authorised by Section 71 to intervene in that case and, if it likes, to publish an award but, in publishing an award, it is to have regard to the provision that the award shall not be inconsistent in its terms with a registered employment agreement. Where is this registered employment agreement?
That means a registered employment agreement covering these workers.
I think the meaning there is clear.
I thought I would make it clearer, because it does not say that.
Clearly, a registered employment agreement can only apply to the workers defined as the class to whom the agreement applies. I will look into the point to see if it is necessary to clarify it, but I do not think it is.
The court is not precluded from interfering in a dispute in which there is no agreement?
That is right. One of its functions is to deal with unofficial strike action taken by workers in defiance of a registered agreement and against the authority of their union. That is one of the circumstances under which the award can be made. Let us assume there is a registered agreement for certain classes of workers, that the union wants to keep the agreement and that some of its members, or some people affected by the agreement and not members, in defiance of the union, go on an unofficial strike. The court may give an award in those circumstances, but the award must not be inconsistent with the registered agreement, to which all the other workers are parties.
I am practically in agreement with the Minister on that and I think that was in the mind of the draftsman when he prepared this paragraph, but I am pointing out that there may be another kind of case in which the court will feel it necessary to intervene, a case in which there is no registered agreement.
I think the word is clearly intended to mean a registered agreement applying to the class of workers concerned. I will have the drafting examined, but I think that is the reasonable interpretation of it.
I raise the matter only because it is mandatory on the court to have regard to something which may not exist.
Amendment, by leave, withdrawn.
I move amendment No. 93:—
At the end of the section to add a new sub-section as follows:—
(3) Where—
(a) a strike continues after the court has made a decision, recommendation or award under sub-section (2) of this section in respect of the strike, and
(b) members of a trade union of workers, whose rates of remuneration or conditions of employment are not the subject of the strike, are unable or decline to work while the strike continues,
then the payment to these members of strike benefit in accordance with the rules of the trade union shall not be regarded for the purpose of this section as assisting in the maintenance of the strike.
May I point out to the Senator that this amendment is not necessary, as there is nothing in the Bill which prevents a trade union spending its money in support of a strike of this kind? The amendment is based on a misunderstanding. So far as this section is concerned, the effect of an award is to prohibit an employer paying any rate or observing any conditions for the period prescribed except as in the award. There is nothing in the Bill which says that a trade union cannot spend its funds——
——to maintain the workers on strike.
Even though the award has been made?
The strike will be useless if the award has been made. That is the way we are dealing with it. That circumstance will not arise as, if there is a trade union supporting the strike, the section cannot operate at all. This section only deals with cases where there is no trade union, where the workers are unorganised.
No registered agreement, surely.
No trade union of workers. Where the court is satisfied that there are no trade union workers concerned in the dispute, this Section 41 will operate. If, at some subsequent stage, a trade union decides to come in, it is free to do so and there is nothing in the Bill to stop it.
There is no reason why a trade union would not support people who are not organised.
What the Senator is trying to put in is the same safeguard for a trade union to permit them to spend their funds in paying strike pay to workers affected by a dispute but not involved in it. There is nothing in the Bill to prevent that. They can even spend their funds supporting the people on strike under this section, but the section does not apply at all unless, when the dispute starts, there is no trade union concerned. It is only in the case of unorganised workers.
Amendment, by leave, withdrawn.
Question proposed: "That Section 71 stand part of the Bill."
The court has power to investigate a dispute and hear the evidence of witnesses appearing before it. Has it power to summon witnesses as it has under Section 21, or is it necessary to have the powers of Section 21 inserted here?
Question put and agreed to.
SECTION 72.
On behalf of Senator Quirke, I move amendment No. 94:—
In paragraph (a), line 42, to delete the word "six" and substitute the word "three".
This is an amendment which I agreed, on the Report Stage in the Dáil, to ask the Seanad to adopt. The effect of an award of the court is to freeze the position for a limited period, so that either the workers can be organised or a negotiated agreement can be arranged. The period suggested in the Bill was six months. It was proposed that it be reduced to three, and I agreed.
Is there any power for the court to consider the making of a second award, if they wish to do so?
No. There is another amendment which I will propose, giving power to vary the conditions of employment, with the consent of the court.
Supposing the first award is made for three months and, coming to the end of the time, it appears there is a possibility of matters being arranged, but they are not completely arranged before the end of three months, has the court any power to continue the refrigeration for a second period?
No, not unless there is another strike.
Amendment agreed to.
On behalf of Senator Quirke I move amendment No. 95:—
In paragraph (b), lines 44 and 45, to delete the words "during the said period, employs or agrees to employ" and substitute the following words: "otherwise than with the consent of the court, employs or agrees to employ, during the said period,".
This is a similar amendment. Its origin is the same as the last. It was suggested the court should have power to vary its award, on the application of a party, during the refrigeration period.
Amendment agreed to.
Section 72, as amended, agreed to.
Sections 73 and 74 agreed to.
SECTION 75.
On behalf of Senator Quirke, I move amendment No. 96:—
Before Section 75 to insert a new section as follows:—
This part does not apply to workers whose remuneration is fixed by a Minister of State under any enactment for the time being in force.
There are certain Acts which give other Ministers the power to prescribe rates of wages for particular workers and it is obviously undesirable that a situation should arise where the court may make an order which would have the effect of making a particular rate decided by the court legally enforceable, whereas another Minister might have made an Order for a different rate which also would be legally enforceable. There would be a conflict between the two and, consequently, it is desirable to have a provision in the Bill precluding the making of an Order where another Minister has the power to prescribe the rate to be paid.
I am very much at sea about this new section, since Part VII relates to a particular class of order. These are transitory provisions in relation to wages, standard rate orders and bonus orders under Emergency Powers Nos. 166 and 260 Orders.
During the course of the passage of the Bill through the Dáil, a clause was inserted giving the court power to prescribe a rate of wages where there has been no standard rate order. The necessity for that arose out of certain cases where the making of a standard rate order was deemed by me to be impracticable because of certain complications in a particular case or because there may be no application for a standard rate order. In order to ensure that workers in that position would not be excluded from the provisions of the Part, the court is given power to make what is, in effect, a new standard rate order, which prescribes a rate of wages legally enforceable.
It was only when that alteration had been made in the provisions of the Bill that it was realised that that might bring about a conflict between an order of the court operating during this transitional period and an Order made by a Minister under another Act. In some of these cases, the Minister, in relation to certain statutory or semi-statutory undertakings, has power not merely to prescribe general conditions and rates of wages but has power to fix the rate that will be paid. Clearly, we could not have that possibility of conflict.
I wonder if the Minister could not indicate with some greater clarity the case he has in mind. What is provided in the new section is an authority for the court to do something which the Minister himself could have done under Order No. 260?
No. Under Order No. 260 I could make a standard rate order which had the effect of prohibiting an employer from paying more but not requiring him to pay the standard rate. If the court makes an order under its power the employer is bound to pay that rate and cannot pay less. There is that fundamental difference.
I agree, but can the court under the new section make an order in respect of employment for which the Minister could not make an Order?
Yes. There is no limitation. The court will have power, in fact, to make an order for classes of workers for whom a standard rate order was not made.
But could have been made?
Whether they could or could not have been made. One case mentioned was the Dublin Milk Board. The Act setting up that board gives the Minister for Agriculture the power to say what the staff of the board will be paid. Because that was in the Act, it was excluded from the Emergency Powers Order and, consequently, there is no standard rate order for these staffs. If the court was to make an order for these staffs you could conceivably have the position where the court would have made an order which would have established the minimum rate to be paid, and the Minister for Agriculture would have made an Order prescribing another rate which, in some respects, might be different from the rate fixed by the court. We must avoid the possibility of conflict between the obligations of the board under two separate enactments.
I was adverting to the heading, part of which specifically refers to the power of making Orders under Emergency Powers Orders Nos. 166 and 260. I see the point, however.
But surely the court, composed of reasonable men, would not do anything so incongruous?
It is to avoid that possibility that the amendment is being moved.
Amendment agreed to.
I move amendment No. 97:—
In sub-section (3), page 25, after the word "made" in line 39, to insert the words "either personally by an accredited representative of the person making the application or".
In this I am endeavouring to clarify the sub-section. As drafted, it appears to me that it might be held that an application may be made only by registered post. The sub-section provides, of course, that it may be made by registered post.
I do not think the amendment is necessary. The sub-section merely stipulates one method by which the recording can be effected. There is no bar, however, on any other method.
But the court may hold that a person making an application for recording was entitled to make the application by registered letter only.
No. The sub-section might not have been inserted in the Bill at all. The matter might have been left for regulation by the court. I thought it was desirable to illustrate the automatic nature of the recording by making it quite clear that a group of workers had not even to travel to Dublin to effect the recording: that they could do it by registered post. Therefore, I thought it better to make it clear in the Bill what was intended.
I think that the Minister might look into this point. It is quite possible that it might be held by the court that the recording could only be made by registered post. There was a similar provision in the Landlord and Tenant Act of 1931 dealing with the service of notices and providing that such service could only be made by prepaid post. I remember having a case where the notice was served personally. The person concerned refused to accept personal service. The time expired for serving it by post, and some difficulty was raised about it afterwards in court before a circuit judge. Therefore, if the section provides a way of doing this the court may hold that it is the only way in which it can be done. I think the Minister might look into the point.
Amendment, by leave, withdrawn.
Sections 75 and 76 agreed to.
SECTION 77.
I move amendment No. 98:—
In sub-section (1), page 26, line 51, before the word "Orders" to insert the word "said".
I am accepting the amendment.
Amendment agreed to.
Amendments Nos. 99 and 100 not moved.
I move amendment No. 101:—
In sub-section (1), page 27, before line 7, to insert the following new paragraph:—
(e) if a trade union representative of workers to whom the said Orders relate complains to the court that an employer to whom the said Orders relate or a trade union representative of such employers is by means of lock-out or by monetary contributions assisting an employer or a group of employers who is or are seeking to enforce a reduction in wages in contravention of the provisions of the said Orders the following provisions shall have effect:—
(i) the court shall consider the complaint and shall hear all persons appearing to the court to be interested and desiring to be heard;
(ii) if after such consideration the court is satisfied that the complaint is well-founded, the court may, by order, direct the said employer or group of employers, as the case may be, to desist from so acting as aforesaid.
This raises a question similar to that which was raised earlier in relation to the penalties which ought to be imposed when an employer locks-out in the manner described in the amendment. I do not want to go over the matter again, but I do suggest that there is a case for the Minister to examine. From what has already been said it is easy to picture a case in which a body of employers might decide to come to the aid of somebody engaged in a trade dispute by locking-out their staffs. There would be no penalty under the Bill because the locking-out was not done for the purpose of contravening a registered agreement. Therefore, there would be nothing which could be reported to the court under the Bill. There is, however, need to consider this point: what is the function of the court where an employer, or a number of employers, come to the aid of one of their brethren engaged in a dispute? Can they act in that matter with impunity? Is it permissible for, say, ten employers in Dublin to assist another employer engaged in a trade dispute by locking-out the whole of their staffs simply because the union to which their staffs belong is engaged in a dispute with another employer?
Let us take the case of a firm, one of great importance in this city, that employs 500 people. It has an agreement registered with a particular union, and some difference arises not in relation to any matter covered in the agreement but in regard to something else. The management, for example, decides that instead of the superintendents checking the attendances in the morning at 9 o'clock it will introduce a time clock. The staff complain and say that is unfair because the 500 of them cannot get into the shop at 9 o'clock. If the 500 arrive at 9 o'clock it will, possibly, be 15 or 20 minutes past 9 o'clock before they have passed through the hall where the clock is. As a matter of fact, a dispute arose over this very point some years ago. This is a matter, remember, which is not covered by any registered agreement and no settlement can be reached because the employer insists on the clock. The employees insist that it must be time-keeping instead of a clock but he says "no". A dispute takes place. There are ten other firms linked up in an organisation. This firm is not a member of the organisation, but the other ten employers see that this employer is fighting a principle in which they are deeply interested. They warn the members of their staff that if the union to which they belong persists in fighting this other firm that they will be locked out. In such a case as that, is there any provision made for imposing a penalty on those who do that, or does the Minister consider it desirable that there should be a penalty?
So far as I understand the Senator, there is no question of a breach of a registered agreement involved there and, if there is not, the court does not come into it. It is only where there is a breach of a registered agreement or, in this case, a breach of a standard rate order, that the penalties prescribed operate. It would be perfectly useless for an employer to lock out his staff to compel them to accept less than the recorded standard rate because the court could compel the employer to pay that rate and the employees could recover the balance of wages due to them if there was any underpayment. If there is no question of a breach of a registered agreement or of a standard rate order, then the court does not come into the matter and the penalties would not apply.
Amendment, by leave, withdrawn.
Amendment No. 102 not moved.
Question proposed: "That Section 77 as amended stand part of the Bill".
Sub-section (2), paragraph (b) of this section states: "Where members of a trade union of workers whose rates of remuneration are not the subject of a strike" etc. There may be a strike over matters other than the rates of remuneration. Would the Minister think of adding the words "or other conditions of employment" after the word "remuneration"?
In so far as this part of the Bill is concerned the only question that arises is the rates of remuneration. We are dealing now with standard rates of wages which are given legal effect for a temporary period by an order of the court.
Question put and agreed to.
Sections 78 to 81 inclusive agreed to.
SECTION 82.
Question proposed: "That Section 82 stand part of the Bill".
This section is similar to Sections 33 and 57.
Yes, and the same amendment will be effected.
I should like to ask the Minister whether he has considered what would be the position if at the end of the second period under this part of the Bill there is still a desire to retain registration and the recording of an Order. As I understand it, he is taking power to continue the provisions of this part of the Bill for another period after the expiration of 12 months. Once he has extended these provisions for one other period, his powers to extend expire. As I understand it, he cannot make a second Order.
I would regard that as desirable. It seems to me that if, as might happen, experience of the operation of Part VII of the Bill creates a general desire that some similar power should be retained in the court in perpetuity, we should have to enact fresh legislation because, quite clearly, this part has been framed in the light of the fact that it is going to be of a temporary character only. If it were to be of a permanent character, we would have to do something more than is proposed here. This part is based on the emergency powers Orders and we would have to get away from that. We would have to empower the court to disregard a standard rate order and make a new order if it was intended to have permanent effect. The position will be that it will continue for a year and if there is agreement it will continue for a longer period. If it is the desire to continue it permanently, then there will have to be fresh legislation.
Question put and agreed to.
FIRST SCHEDULE.
Question proposed: "That the First Schedule be the First Schedule to the Bill."
I would suggest to the Minister on this Schedule that, as he proposes to introduce legislation later on dealing with classes of workers excluded from the provisions of the Bill, he might reasonably omit from the Schedule the Conciliation Act of 1896 and the Industrial Courts Act of 1919 and permit these two Acts to be used until he introduces legislation to deal with employees of local authorities, State servants and such other people.
I explained before that I would regard that as undesirable because there would be no intention of using either of these Acts in relation to State servants.
I wish to raise a purely drafting matter on the Schedule. A number of Acts are set out in the second column with their short titles but in fact the short title given is not the short title of some of these Acts. Take for example the Conditions of Employment Act, 1936. The short title is "Conditions of Employment Act, 1936". There is no "the" in the Act itself. I think the same thing applies to the "Conditions of Employment Act, 1936" and it may apply to other Acts. I should like to have that matter looked into so that the short titles may be corrected.
I shall have the matter looked into.
Question put and agreed to.
SECOND SCHEDULE.
Question proposed: "That the Second Schedule be the Second Schedule to the Bill".
Would the Minister not take power in this Schedule to enable him to appoint somebody on a joint labour committee instead of a member who has been removed?
I shall look into that matter.
Question put and agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Friday, 16th August.
When is it hoped to have the Ministerial amendments ready?
To-morrow is the earliest we can get them out.
They will be available in the building to-morrow evening?
Yes.
The Seanad adjourned at 9.50 p.m. until 10.30 a.m. on Friday, 16th August, 1946.
