In introducing to the Seanad this Bill and asking for favourable consideration of its contents I am conscious of the fact that the Bill has already given rise to a good deal of comment. I am, therefore, glad of this opportunity to outline the basic reasoning behind the measures which the Bill contains.
The purpose of the Bill is to amend the legislation disqualifying persons from receiving unemployment benefit or assistance while involved in a trade dispute. The Bill provides that this disqualification will not apply where it is decided that the person involved has been deprived of his employment by the unreasonable action of his employer.
I hope in the course of my speech to allay certain fears which have been expressed about the intent of the Bill and the possible effects of the measures provided for in the Bill. The purpose of the Bill is a limited one. It does not fundamentally change the present situation with regard to the non-payment of unemployment benefit or assistance to persons involved in a trade dispute. The general principle that unemployment resulting directly from a trade dispute in which the claimant is involved should not give him title to unemployment benefit has been in existence from the introduction of unemployment insurance in 1911. It is a feature of unemployment insurance schemes elsewhere and in my opinion is essential to preserve the neutrality of the social insurance fund in trade dispute situations. I am not altering this basic provision and indeed nobody has suggested to me that I should do so. What I am addressing in the Bill is a very particular and, I believe, unusual type of situation which could occur in the context of a trade dispute and in which the automatic disqualification of the employee for unemployment benefit could be regarded as unjust.
The type of situation I have in mind arises where the behaviour of the employer in a trade dispute is such that the employee is effectively prevented from remaining in or resuming his employment. This could happen for example where an employer by unilateral and arbitrary action and without the normal process of consultation seeks to impose an unwarranted worsening of terms or conditions of employment on his work force, or where an employer lays off workers without proper consultations or without utilising the normal industrial relations machinery which is availed of by employers generally. In these types of situation employees may find themselves unwillingly caught up in a dispute with no real effort being made to employ normal industrial relations procedures. The employer may have his own reasons for the way in which he handles the situation but what we are trying to resolve by means of the provisions of this Bill is whether the employee is being unfairly treated and whether his automatic disqualification from receiving unemployment payments in these circumstances is unduly harsh and inequitable.
I know from the official records that the previous Government had received representations on this matter and had started the process of consideration and consultation. On taking office following the change of Government, I also received representations. I considered the issues raised with me in great detail and I was satisfied that there was a genuine problem which needed to be resolved. The result is the Bill which is now before you. Following consultation with them, the Irish Congress of Trade Unions have expressed support for the measures contained in the Bill. The Federated Union of Employers consider that the legislation is unnecessary and that the matters at issue can be resolved within the framework of the existing machinery. There are, however, good reasons why this is not possible and I will outline these later. In general however what has emerged is that the automatic disqualification for receiving unemployment payments may be inequitable in certain types of situation to which I have referred. The possibility of such situations arising has been highlighted in the context of a number of industrial disputes that took place earlier this year. I make no judgments in relation to these disputes and I would not attempt to do so. I have no doubt it is better to deal with the problem now than to sweep it under the carpet once particular disputes have been settled and hope that it will not raise its head again.
The existing decisions and appeals machinery of the Department of Social Welfare simply decide whether or not a trade dispute exists in a particular situation. Once it is decided that a trade dispute exists then the persons involved are disqualified from receiving benefit. The deciding officer or appeals officer makes no judgment on the nature of a dispute — whether, for example, what is involved is a walk-out or a lock-out. It is no part of his function to pass judgment on the merits or demerits of industrial disputes, nor is he equipped to do so. It has been suggested by the FUE that deciding officers or appeals officers could deal with the problem by simply taking account of decisions arrived at by the Labour Court. This, however, is to misunderstand the whole purpose of what is being attempted. The function of the Labour Court is to solve disputes by putting forward solutions that it considers appropriate and acceptable. The allocation of responsibility for the dispute is not of fundamental importance in the deliberations of the Labour Court but rather is it a question of solving the particular dispute. These considerations would be of no assistance in attempting to solve the particular difficulties with which we are confronted.
I, therefore, decided that the functions of deciding officers and appeals officers should remain as they are and that when problems arise they should be tackled separately by an independent body with sufficient competence in the industrial relations field to enable it to adjudicate. Provision is made accordingly in the Bill for a Social Welfare Tribunal which will be independent of the present social welfare decisions and appeals machinery. These provisions would continue to be used and the deciding officer and appeals officer would as heretofore decide, in cases where a worker loses his employment, whether or not a trade dispute existed. Depending on the decision benefit would be allowed or disallowed.
If the decision were to disallow benefit then it would be open to the workers to apply to have their cases referred to the tribunal for adjudication if they felt that they had been unfairly treated. The tibunal would consider the various elements present in the case and would adjudicate on whether or not the workers lost their employment in circumstances that the tribunal considered to be within the provisions of the Bill and whether or not unemployment benefit should in consequence be paid. This decision of the tribunal would be binding on all parties, subject to an appeal to the High Court on a point of law.
In the procedures proposed there would be no intention of adjudicating on the merits or demerits of the fundamental industrial relations problem at issue. This is an area for which there already exists independent and impartial machinery. Rather would it be a question of investigating the manner in which workers had been deprived of their employment and all the circumstances surrounding this. The tribunal would be representative of the interests of employers and employees and would have the expertise necessary to enable it to examine the various elements in a dispute and make an authorative adjudication as to whether the workers involved have been unreasonably deprived of their employment with particular reference to the question as to whether or not normal industrial relations practices had been observed.
The Bill does not tie the tribunal's hands with regard to the matters which it should consider in arriving at its adjudication but it does set out the main considerations which will be relevant to the tribunal's adjudication. These considerations relate mainly to the conduct of the employer since the question at issue is whether or not he has acted reasonably. In this context the view has been put that the Bill makes special provision in favour of the employee without at the same time giving a balancing facility to the employer. There are a number of points which I would like to make in relation to this. First of all, I am endeavouring in this Bill to deal with an injustice which is only applicable to employees since they are the ones who are deprived of benefit in dispute situations there is no question of employers being deprived of benefit. Secondly there is no question of trying to shift the balance in industrial relations by giving an unfair advantage to employees in dispute situations. Rather this provision should be looked on as an attempt to redress an imbalance which is inherent in the present situation and which can arise in the limited type of situation to which I have earlier referred. In this regard I see the provisions of the Bill as contributing to an improvement in industrial relations rather than the opposite.
It has been argued that there is a danger that the provisions in the Bill will be used or abused for purposes other than those intended — presumably what is in mind is that employees would use the tribunal as a means of obtaining an unfavourable decision against their employer in a dispute and thus strengthening their own bargaining position. Of course any arrangement, no matter what the safeguards, can be open to abuse, as indeed are other areas of the social welfare code. I think, however, that the likelihood of abuse of the kind referred to is remote.
The tribunal in arriving at its adjudication will be alive to the possibility of abuse and I am sure we can all rely on the objectivity and good sense of the tribunal to ensure that no major problems will arise. Indeed the point has likewise been made that the existing trade disputes disqualification is capable of being abused when an employer might force a dispute on his employees knowing that in the event of a dispute they will not be entitled to unemployment payments. Any system is open to abuse but in establishing the independent Social Welfare Tribunal I am doing my best to ensure that adjudications are fair and take account of the positions of all the parties involved.
I hope that what I have said will have made clear the limited nature of the provision being made in this Bill and the necessity for making this provision at this time. The cases which will fall to be dealt with by the new tribunal should be few in number because I agree with the view put forward by the FUE that the number of employers who do not utilise existing industrial relations machinery are few and exceptional. I have pleasure, therefore, in recommending this Bill to Seanad Éireann.
