Senator Foran moved an amendment in Committee which I accepted in principle. This is the amendment which gives effect to the purpose that Senator Foran had in mind, which was to remove the Ministerial power of veto over the nomination of trade union organisations.
Industrial Relations Bill, 1946—Report and Final Stages.
I think the Minister has made a mistake in bringing in this amendment. I have no doubt that some trade unions take the view that they should decide finally as to who are to represent them. But the Minister has a wider responsibility and I think this House has a wider responsibility to see that this court will work. In my view, the Minister is taking a great risk in introducing the amendment. In the section as it stands—I am not expressing an opinion as to whether it is satisfactory or not—the Minister accepted responsibility to see that the court was constituted of people in the selection of whom he had some voice. The Minister mentioned here on the last occasion that, if it were proposed to him that persons of a particular class, that is to say, members of the Oireachtas were nominated, he might, if he thought fit, decline to accept the nomination. That, I take it, was merely illustrative rather than exclusive, and that, in fact, he might say that there were other reasons present to his mind, as there are to my mind, why a certain nomination might not be acceptable. The Minister deprives himself of that right under this amendment.
Of course the section itself is merely of academic interest at the moment, because I assume that the court will be established under sub-section (5) and not under sub-section (4). It seems to me that there is no alternative to operating sub-section (5). In that case, the matter is not of any immediate interest. But, if the court were to be established under sub-section (4), the Minister might find himself given nominations not merely by one side—I am not suggesting by one side—but by all the parties that might create embarrassment for him. Supposing, for instance, an employers' trade union or an association representative of workers' trade unions were to nominate barristers or solicitors as members of the court, I think the Minister would find himself in the difficulty that he has been trying to avoid all along in regard to the chairman. As a matter of fact, it is not outside the bounds of possibility that the Minister would have proposed to him as members of the court people who are actually practising their profession in the law courts, and he surrenders the power he has in the section as it left the Dáil of saying: "No, I am not prepared to appoint any practising barrister or solicitor to this court." Once this amendment is accepted, that power is gone and I think the Minister should think twice before he asks the House to accept the amendment.
I believe that the Minister would not choose to exercise the power, if it were retained in the Bill, except in very unusual circumstances. If such unusual circumstances were to arise, I believe that the Minister would be able, by private representations, to secure their avoidance. If he could not do that, I think a difficult situation would arise which would have to be resolved otherwise. The insertion in the Bill of the provision giving the Minister this power to reject nominations was suggested by the Irish Trade Union Congress and I feel sure that they had in mind the present situation. The suggestion was made before sub-section (5) went into the Bill. If the present situation in the trade union movement did not exist, I am certain the suggestion would not have been forthcoming. I believe that they would regard sub-section (5) as a better alternative to deal with any problems which may arise out of the present situation. As objection has been taken to the retention of the power and as, in any event, it is not a power which the Minister would like to retain, I think it is better to delete it.
There was some possibility that it might be held that the members of the court would be subject to the Civil Service Regulation Acts. It is not intended that the members of the court will be appointed by the Civil Service Commission and, consequently, this amendment is desirable in order to avoid that risk.
This is a drafting amendment, although it arises from the discussion we had on the Committee Stage. The amendment makes it clear that any reference in the Act to the court shall be deemed to be a reference to a division of the court, and any reference to the chairman shall be deemed to be a reference to the chairman of a division of the court.
Is it clear that an appeal will not lie from a decision of a division of the court in the same way as an appeal does not lie under Section 17 in the case of the full court?
The amendment will make that quite clear.
The Seanad will remember that it was said on the Committee Stage that this clause might be read as indicating that places in Dublin could not be designated by the court for the lodgment of documents. As it is not necessary to retain the words, I move their deletion.
At the request of Senator O'Dea, I move amendment No. 5:
In page 9, Section 20, to add at the end of sub-section (5) the following words:—
"and such rules may inter alia empower the court to refuse to allow any member of the court or other person to ask a witness a question which in the opinion of the court is calculated to elicit information the disclosure of which may be detrimental in any way to the interests of any trade union, business or trade.”
As the arguments in favour of this amendment were discussed on the Committee Stage, I do not propose to go over them again. I should like, however, to hear the Minister's opinion on the matter.
This amendment is based on the assumption that under Section 21 a witness must, under pain of penalties, answer any questions that may be put to him, provided they are relevant to the proceedings, even though the answer to a question might involve confidential information. I think Section 21 must be read in conjunction with any rules that may be made by the court under Section 20. It is clearly intended that such rules will provide for the manner in which questions will be put, who will be entitled to put questions to witnesses, and whether the court will or will not allow a question and, particularly, whether an answer to a question should be given confidentially to the chairman or to the court rather than made publicly. It is, I think, very probable that the rules will cover all these contingencies and will provide particularly for the submission of information which the court may require but the publication of which might be detrimental to individual interests.
Senators will remember the discussion we had on this amendment. The purpose of the redraft of the section is to make it clear that the prohibition on the disclosure of information applies not merely to the court but to any individual member of it or any other person who may be concerned in the proceedings.
Will this amendment prevent the Press being present at any sitting?
No. It is intended to cover the report of the court or any award or opinion which the court may publish on an industrial dispute. It is clear that to make its award or opinion intelligible it may on occasion have to refer to matters that were elicited in the course of the hearing of the case by the court, but the prohibition is on the disclosure of information which is not otherwise available. There was a suggestion that we should put in the word "publicly" before "available," but that would be too restrictive, because there may be cases where only information which was publicly available for the first time at the hearing of the court would make understandable the opinion of the court on the question.
I indicated that I would move this amendment. I accepted amendments by Senator Kingsmill Moore to make it clear that an employment agreement may apply to any class, type or group of workers. Section 28 is intended to apply only to a section of workers within a class, type or-group and, accordingly, the words "group of" workers in the sub-section are inappropriate and I move to delete them.
Senator Duffy suggested this amendment in Committee. The effect is to make it mandatory on the court to hear all persons who desire to be heard in relation to an application to vary a registered agreement.
I do not know whether the Minister adverted to the fact that on the Committee Stage we adopted the amendment which was tabled in my name, and there is no proposal here to delete it. Strictly, this amendment on the Paper is an alternative to the amendment inserted in Committee and I draw attention to that fact because there is no point in having both amendments there.
It was amendment No. 59 in Committee.
Yes. No. 59 was accepted in Committee and it is published among the amendments inserted in Committee.
I think that was a misunderstanding. What I intimated was that I would produce this on the Report Stage. Perhaps the matter could be disposed of now by deleting amendment No. 6 inserted in Committee?
That satisfies me.
As I understand the position now, amendment No. 6 on the list of amendments inserted in Committee is being deleted and amendment No. 8 is being substituted for it.
9. In page 12, Section 29, sub-section (4), to delete paragraph (b) and substitute the following paragraph:
(b) the registration of an employment agreement continued in force under paragraph (a) of this sub-section may be cancelled by the court on the application of any party thereto, made after three months' notice to the court, and consented to by all parties thereto representative of workers or of employers.
This is partly a drafting amendment. It makes it clear that the paragraph applies only when an agreement is continued under the preceding paragraph after the nominal period of registration has expired. It goes further by making a slight change in the procedure for application for cancellation. Any one party can now apply for cancellation, but before cancellation all the parties on the one side or the other must agree. Previously the application for cancellation had to be made by all the parties on the one side or the other.
The point raised in Committee with regard to paragraph (b) is met by the Minister's amendment, but a point was raised in connection with paragraph (a) of Section 29. The question at issue is whether an agreement is cancelled or whether it is the registration which is cancelled. Paragraph (a) says that, where a registered agreement is expressed to be for a specified period, it shall, if in force at the end of that period, continue in force until its registration is cancelled. It continues in force in any event. An agreement made between two parties continues in force, whether it is registered or not.
The Senator is not quite right in this case. This section relates to an agreement which is expressed to apply for a stated period and which will not be in force at the end of that period because there is a date in the agreement on which it terminates. We provide here, however, that even though there may be a date in the agreement on which it terminates, it will nevertheless continue in force unless one or other of the parties to it requests the cancellation of its registration.
If the Minister is satisfied with the legality of the position, I raise no question.
Senators will remember that we had a discussion upon Section 33 and I intimated that I would produce this amendment in substitution for the section as it appeared in the Bill. The effect of the change is that courts of law will now be able to deal with questions of interpretation or application of registered agreements, without necessarily referring the matter to the labour court. The court of law must have regard to any decision in the matter made by the labour court and which may be brought to the attention of the court by any of the parties to the proceedings. On the other hand, the court of law may itself refer any matter related to the interpretation or application of a registered agreement to the labour court for its decision.
There is a difficulty running through this section which ran through these two portions of the Bill all along until a method was devised in the Dáil to get over the difficulty of distinguishing between the two courts. As the Bill was printed, the only distinction one saw was the use of a capital "C" for the labour court and a small "c" for a court of law. That difficulty was overcome in the Dáil by the insertion of certain words which made clear what was referred to, but now we are back again to the difficulty. Sub-section (2) says:
"A court of law, in determining any question arising in proceedings before it as to the interpretation of a registered employment agreement or its application to a particular person shall have regard to any decision of the Court.——"
Sub-section (3) says:
"If any question arises in proceedings before a court of law as to the interpretation of a registered employment agreement or its application to a particular person, the said Court.——"
A capital "C" is used there in order to add to the confusion—
"...may, if it thinks proper, refer the question to the Court for its decision, and the decision of the Court thereon shall be final."
It is not easy to get over the difficulty, but the difficulty seems to be magnified in the drafting of this new section. There are two other amendments of the same kind. In both cases, the court of law is expressed with a small "c" and in this case with a capital "C." The matter might be considered by the skilled craftsmen. I am not a craftsman and I find great difficulty in following what the craftsmen have done.
I do not think the capital "C" is used in quite the manner the Senator suggests. Reference to a court of law involves the use of a small "c" but reference to the court, the labour court, involves the use of a capital "C."
But not in sub-section (3) of amendment No. 11.
In this case, the court of law has a capital "C."
If Senators feel that there is any risk of ambiguity, we can put in before "court" the word "labour."
It will be necessary to change the definition then.
I do not think it can lead to any ambiguity.
Would the Minister agree that there ought to be a small "c" in this sub-section (3)?
If we put a small "c" in the third line of sub-section (3), it might resolve the difficulty. On the amendment generally, I feel that I can scarcely let the occasion pass without referring very briefly to the discussion on Wednesday. The House will remember that on that occasion the Minister made a most impassioned oration in which he demolished arguments put up to the right of him, to the left of him, in front of him, and almost behind him, but in which he never met the arguments put up against him, which arguments are now expressed in this amendment. For that, I personally am very glad, but I think it is undesirable that there should have been what I might describe as a general diatribe against the law as such.
It is only when general principles which govern us in the manner in which we live are interpreted in accordance with a general scheme of law and not according to ad hoc decisions made on the basis of expediency that we will get real justice, real security, real freedom and real independence for the individual. The courts of law have achieved that security, that independence and that freedom for the individual by interpreting the rules in general senses, worked out not merely through one generation but through several, and the suggestion, as the Minister suggested, perhaps in the heat of the moment, that such an interpretation is contrary to public policy would I think be a bad thing to leave uncontradicted on our records.
It seems to me that if, instead of the words "the said Court" in sub-section (3), the words "said court of law" were inserted— although they seem tautological—it would remove a doubt that would arise in the minds of laymen reading this Bill, because, in the main, this Bill will be read more frequently by laymen than by lawyers.
I do not think there is any possibility of ambiguity. The phrase "the said Court" is clearly the court of law referred to in the earlier part of the sub-section.
Would the Minister have regard to the fact that a trade union secretary reading the Bill will want to know what his rights are and how he is to proceed, and that, in 95 per cent. of cases, such officials will be in difficulties as to what is meant by the wording here? I am not thinking merely of trade unions of workers but of employers. I expect employers will often be able to brief legal gentlemen to tell them what "the said Court" means, while a trade union may not. There are some of the trade unions in dire poverty, and if Senator Sweetman's friends force them to have a prolonged strike in County Kildare, they will be poorer still. The case I put to the Minister is that laymen looking at this Act will wonder what is meant by "the said Court." I do not see anything wrong with making it read "the said Court of law," or with leaving out the word "said."
Substituting for "the said Court" the words "court of law"?
It will be appreciated that this section relates to proceedings in a court of law, and the trade union secretary to whom Senator Duffy refers would be well advised to support himself with competent legal advice before entering a court of law.
In this matter, every effort should be made to continue the practice adopted in the earlier portion of the Bill and to use language and phrases commonly understood by people outside the law. I imagine that if we deviate now, and tie ourselves up in legal phraseology, we will have to go to the universities or to the law courts for an interpretation.
A dictionary will do.
I do not know that a dictionary would be satisfactory. I think we should try to keep to the phraseology generally used and persevere to the end in that strain. Give trade unions an opportunity of reading their own language and understanding one another.
With the consent of the Cathaoirleach, I would agree to substitute, in the third line of the sub-section, the words "said court" by "court of law".
Senator Duffy referred to the question of a strike in County Kildare. Let me point out to the Senator that it is his own people, and not those who happen to be friends of mine, who are forcing that strike.
Are we to have a discussion on that matter?
That matter is outside this amendment.
I think we might put it off for the adjournment.
I presume the same change will be necessary in this amendment—to substitute in the fourth line of sub-section (3) the words "court of law" for "said court".
This is a drafting amendment intended to make the Bill somewhat more symmetrical. Section 79 deals with the cancellation of a recording of a wages (standard rate) order and it is considered better that both provisions should be in the same section.
This is the same as amendment No. 11, and I presume it is agreed that a like change will be made —to substitute for "said court" in line 3 the words "court of law".