Seanad Éireann debate -
Tuesday, 10 Jul 1990

Vol. 125 No. 16

Industrial Relations Bill, 1989: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Labour (Mr. B. Ahern)

The Bill now before the House provides a framework for the improved conduct of industrial relations and for the resolution of trade disputes, with the aim of maintaining a stable and orderly industrial relations climate. The Bill provides for major reform of the law on industrial relations, trade dispute and trade union law and for the establishment of a new Labour Relations Commission.

The measures contained in this Bill have their immediate origin in the Programme for National Recovery. This committed me to holding discussions with the social partners about changes in industrial relations to provide a better framework for collective bargaining and dispute settlement and help to create conditions for employment-generating investment.

In entering these discussions I was aware that many unsuccessful attempts had been made in the past to secure agreement on fundamental changes in trade dispute and industrial relations law. It was my view that any further attempt to secure complete agreement was unlikely to lead anywhere, given the respective positions and interests of employer and worker representatives. I decided instead to identify a number of key areas which I considered needed attention. On that basis I developed a package of proposals. These addressed the major issues and were designed to improve the collective bargaining environment with a view to minimising conflict and maximising co-operation. The detailed discussions which I subsequently held on the proposals with the social partners confirmed my view that this was the only way in which progress was likely to be achieved.

The Bill before this House is the product of an exhaustive consultation process with both the Federation of Irish Employers and the Irish Congress of Trade Unions. It is an amalgam of proposals which I put to both sides and suggestions by the parties. The Bill has been the subject of very lengthy and in-depth debate in the Dáil over the past six months with Deputies from all parties acknowledging the importance of this legislation. As would be expected in the case of legislation in this area there were, of course, differences of opinion on various aspects of the Bill. I gave careful consideration to the views expressed and the Bill in its present form incorporates a number of amendments and suggestions made during the debate in the Dáil.

I would like to turn now to the specific provisions of the Bill. These range over a number of areas and can be divided broadly between trade union and industrial relations law. Under the broad heading of trade union law there are provisions to reform trade dispute law; to introduce pre-strike secret ballots and restrict the use of injunctions in trade disputes, and to facilitate the further rationalisation of the trade union movement.

Under the broad heading of industrial relations law I propose to establish a new Labour Relations Commission which will have responsibility for a wide range of functions, including the provision of conciliation and advisory services and the drawing up of codes of practice.

There are also provisions to amend and improve the procedures governing the establishment and operation of joint labour committees and technical provisions to enable more effective enforcement of employment regulation orders and registered employment agreements. I will now deal with each of these areas in turn.

The statute law in relation to striking and picketing is primarily contained in the five section Trade Disputes Act, 1906, with a number of further provisions in the Trade Union Act, 1941 and the Trade Disputes (Amendment) Act, 1982. The law in this area is not as simple, however, as a reading of the Acts might suggest. Since 1906 there has been a considerable volume of case law arising from the interpretation by the courts of the provisions of the Trade Disputes Act.

As a result the law in this area has become extraordinarily complex and its precise limits vague and confusing. The usefulness of the statute law in providing a guide to conduct is diminishing and it is increasingly necessary to look to case law. I feel, however, that as far as possible, it is statute law rather than case law which should provide a clear indicator as to the boundaries of what is permissible and what is not permissible in trade dispute situations and it is my intention that the Bill should resolve this position.

My approach in the area of trade dispute law is to repeal the Trade Disputes Acts of 1906 and 1982 and to reintroduce the main provisions of these acts with amendments. An important by-product of this approach is to give the legislation a clear presumption of constitutionality.

Taken in the order in which they appear in the Bill the main features of the provisions relating to trade disputes are that: the definition of trade dispute is being amended to exclude worker versus worker disputes; the immunities will no longer apply to disputes involving one worker where procedures have not been followed; picketing will be confined to an employer's place of business and the present wording whereby picketing can take place "at or near" a particular location will be changed to "at or where that is not practicable at the approaches to"; secondary picketing will be permissible only in situations where workers have a reasonable belief that the second employer has acted in a way likely to frustrate a strike or other industrial action by directly assisting their employer; an anomaly whereby organising a strike is protected by the immunities but threatening to organise or take part in a strike would appear not to be protected is being cleared up; in future the immunity enjoyed by trade unions in respect of tortious acts shall apply only in the case of acts committed in contemplation or furtherance of a trade dispute; unions will be required to have a rule in their rule books providing for the holding of secret ballots before engaging in or supporting a strike or other industrial action; in trade dispute situations where a secret ballot has been held and notice given the granting of injunctions, particularly ex parte injunctions, will be restricted.

I would like to go into a number of these proposed changes in some more detail. In any discussion of trade dispute law, picketing is likely to be a central issue. This is not surprising. From the worker's point of view the picket represents the most formidable and effective means at his or her disposal to bring pressure to bear on the employer. Similarly in the case of the employer, the picket represents the most fundamental threat to the continuation and operation of his other business.

The picketing provisions of this Bill seek to strike a balance between the rights and interests of both sides. In the case of primary picketing, I am moving away from the present definition which permits picketing "at or near a house or place where a person resides or works or carries on business or happens to be"— which I am sure Senators will agree is extremely broad — to the revised definition, "at or where this is not practicable at the approaches to a place where their employer carried on business". The intention is to ensure that in future picketing will be at the employer's place of business.

However, because of the position in relation to private property rights and the need to avoid trespass on private property, there may be circumstances where it will not be possible to picket directly at the employer's premises. For example, where a dispute arises affecting one employer in a shopping centre, industrial complex et cetera it should be possible to secure agreement that the picket be placed at the individual employer's business rather than at the entry to the complex. It is necessary, however, to provide a saver for situations where this turns out not to be practicable or possible.

As far as secondary picketing is concerned, the Bill will regulate such picketing more closely and define secondary picketing in clearly understood industrial relations terms. Secondary picketing, that is, picketing at the place of business of an employer other than an employer involved in a trade dispute, will be lawful only where the workers in dispute have a reasonable belief that the second employer has directly assisted the employer who is party to the dispute for the purpose of frustrating the strike or other industrial action. There have been strong demands from the employers side for the total outlawing of secondary picketing but I believe that to do so would tilt the balance unfairly in favour of employers.

The secret ballot provisions which I consider to be among the most important in the Bill will require every union to have a pre-strike secret ballot rule in its rule book within two years of the passing of the Bill. Among other things, the rule will require that all union members, whom it is reasonable at the time of the ballot for the union concerned to believe will be called on to engage in a strike or other industrial action, be entitled to vote on whether or not to engage in industrial action. Failure to include the secret ballot rule in the union rules within the two year period specified will lead to loss of a union's negotiating licence. It should be remembered that many unions already have pre-strike ballot rules and the holding of secret ballots is normal good practice. The provisions in the Bill are designed to ensure that this good practice is extended to all unions, thus promoting greater order in the conduct of industrial relations.

The provisions on injunctions are closely linked to those on secret ballots. Where a secret ballot has been held and at least one week's notice of industrial action has been given, the employer will not be entitled to seek an injunction without giving notice to the union and the workers concerned. This is to remedy the abuse of injunctions by some employers in trade disputes. The granting of ex parte injunctions, often in a judge's home outside court hours, has been a matter of considerable concern to trade unions for a long time. The Bill also provides that interlocutory injunctions will not be granted where in addition to having a secret ballot and giving notice, the union establishes a fair case that it was acting in contemplation or furtherance of a trade dispute. These restrictions on the granting of injunctions will not apply in the case of trespass, damage to property or action likely to cause death or personal injury.

Injunctions are often sought by employers as a bargaining tool and not for the purpose for which they were intended, namely, to maintain the status quo until a full court hearing can be arranged. Trade dispute cases rarely come to a full hearing. The changes being provided for are designed to reduce recourse to the law courts in industrial relations disputes, while permitting injunctive relief in cases involving trespass, obstruction and so on, thus ensuring that injunctions are stil available in genuinely serious situations. The new arrangements will also provide a strong incentive to trade unions to hold secret ballots and give appropriate notice of proposed industrial action to employers.

In the period since the publication of the Bill there has been a considerable amount of comment about the position of the Irish Congress of Trade Unions all-out picket under the new balloting arrangements. Some commentators have suggested that under the new provisions it would no longer be possible for the ICTU to operate the all-out picket. This is not the case. The ICTU all-out picket mechanism has been a source of order and restraint and has been conducive to the resolution of a number of disputes. It would, I believe, be a retrograde step if this mechanism was lost. The all-out picket arrangements can continue to operate subject only to the union involved balloting their members. I think it is a fundamental right that workers would be entitled to a say in whether they wish to be involved in a dispute. To clear up any doubts which may have existed, the Bill now contains a provision which makes direct reference to the position of the ICTU and the all-out picket.

I would like to turn now to the provisions in relation to trade union rationalisation. It has long been a policy of Ministers for Labour to encourage the rationalisation of the trade union movement. Some progress has been made in reducing the number of unions from 95 in 1970 to 68 today. Despite the rationalisation which has taken place in recent years there are still far too many unions in Ireland. This is bad for industrial relations as it gives rise to inter-union rivalry, a multiplicity of bargaining units and demarcation disputes. The multiplicity of small unions is also bad for members as such unions cannot provide the wide range of services required in today's working environment.

The amendments to trade union law provided for in the Bill are designed to encourage mergers between unions and discourage the formation of new or breakaway unions. The Trade Union Acts, 1975, permitted the introduction of a system of grants towards expenses incurred by unions in a successful merger. The prospect of a merger attempt being unsuccessful and the associated expenses can deter smaller unions from attempting mergers. I am providing that unions which attempt a merger, but which fail in the attempt, may claim expenses relating to the two year period prior to the failure. This will, I hope, help to accelerate the trend towards union rationalisation.

A further proposed change involves the doubling of the membership requirement for a new union seeking a negotiation licence from 500 to 1,000 members and a substantial increase in the level of the High Court deposit required by such a union. While the present membership and deposit requirements which were provided for in the Trade Unions Act, 1971, have worked well to forestall the establishment of small, poorly financed or breakaway unions in areas already serviced or capable of being serviced by existing unions, experience in recent years suggests that some tightening of the requirements is necessary. The changes in the Bill are aimed at strengthening the trade union movement and improving the effectiveness of collective bargaining for union members.

On industrial relations law and institutional reform I would now like to turn my attention to the other major part of this Bill, and particularly to the provisions dealing with the machinery for the resolution of disputes. The major institution in this area is the Labour Court which was established by Seán Lemass in 1946. While the court has served Irish industrial relations well there is now a clear need for a change in the structure and approach of our official dispute setting services. All structures need to be assessed and re-examined from time to time and to say that there is a need for change in the dispute resolution structures is not to take from the major contribution which the court has made. What are provided for in the Bill are measures designed to enhance the contribution which the State machinery can make to the resolution of disputes and to the overall improvement of industrial relations. In particular, the proposals recognise the great contribution which the Labour Court has made and aim at improving and enhancing its status.

The changes proposed shift the main responsibility for dispute prevention and resolution back where it properly belongs, that is, with the parties themselves. The Labour Court has become a court of first resort rather than the final, authoritative tribunal in industrial relations matters which it should be and which it was always intended that it should be.

The changes which the Bill provides for in relation to the dispute resolution machinery have four principal objectives: to give a new general responsibility for the promotion of better industrial relations to an appropriate body; to encourage and facilitate a more active approach to dispute prevention and resolution; to restore the original purpose and status of Labour Court investigation and recommendations; and to make provision for a number of new functions and services.

The major change provided for is the establishment of a new Labour Relations Commission guided by a tripartite council, with employer, trade union and independent representation. In addition to the overall responsibility for the promotion of good industrial relations, the commission will have a wide range of functions including the provision of conciliation and advisory services and the development of codes of practice. The Equality Service and the Rights Commissioner Service will in future act as independent units of the commission.

One of the main reasons for establishing the commission is to have a body specifically charged with the primary responsibility for the promotion of better industrial relations. The commission will be well placed to make public pronouncements on industrial relations practices and procedures which need to be changed and to call for legislative or other changes if necessary. The commission will also be able to highlight examples of good practice and encourage others to adopt similar practices.

Its pronouncements will carry the authority of a tripartite body and the collective experience of respected experts drawn from the industrial relations field. This promotion of good industrial relations will also be advanced through many of the commission's activities, such as the provision of an advisory service, the preparation of codes of practice and the offering of guidance on such codes, conducting and commissioning research and reviewing and monitoring developments.

A second major objective in establishing the commission is to encourage and facilitate a more active approach to dispute prevention and resolution. A previous attempt to broaden the role of the conciliation service within the Labour Court structure had little effect.

The commission will attempt to bring about a change in attitudes so that the responsibility for dispute resolution is shifted back to the parties themselves where it primarily belongs. The attainment of this end will entail a reappraisal by trade unions and employers, especially those who are still attracted to the option of adjudication, of their attitude towards dispute resolution. If a dispute cannot be resolved at the workplace then an industrial relations officer of the commission will facilitate the parties to reach a settlement on their own terms. The parties should be more committed to an agreement that they have worked out together through negotiation than to an adjudication handed down by a third party. The advisory service of the commission will also have an important role to play in the prevention of disputes but I will return to this point later.

As I mentioned earlier, one major objective in establishing the commission is to restore the original purpose and status of Labour Court investigation and recommendations.

Up to the end of the 1960s the Labour Court issued about 100 recommendations each year. Over the years since then there has been a dramatic rise in the number of recommendations issued. The figure reached a peak of 1,045 in 1983, declining to 708 in 1988 and 646 in 1989. Part of the explanation for the large increase in the number of recommendations issued by the Labour Court particularly during the 1970s can be attributed to the central role provided for the court in the resolution of issues which arose in the context of the various national wage agreements.

It would appear that having developed the habit of referring matters to the court for adjudication the parties to disputes have found it difficult to revert to settling their own problems. While the decline in the number of issues being referred to the court in recent years is to be welcomed, there are still too many recommendations being issued by the court on relatively trivial matters. This can only damage the status and ultimately the acceptability of Labour Court recommendations.

The increased emphasis given to conciliation through the establishment of the Labour Relations Commission should ensure that more cases are settled at conciliation and that fewer cases are heard by the court. Untimately, as the parties take more responsibility for their own disputes, there should be a decline in the number of conciliation cases too.

The Bill provides that the court will not normally investigate a dispute unless it receives a report from the commission to the effect that the commission is satisfied that no further efforts on its part will advance the resolution of the dispute. The court should as a result become a genuine court of last resort in industrial relations rather than a court of almost automatic recourse as at the moment.

On new functions and services and particularly the advisory service, I have referred already to the fact that the commission will undertake research and will review and monoitor developments in the industrial relations area. The commission will also provide an advisory service. There is an important role for a small strategic State provided advisory service concentrating on areas giving rise to recurring industrial relations unrest where impartial advice from a third party acceptable to management and unions could help to resolve deep seated industrial relations problems.

Too easy access to the Labour Court has in the past meant that in some cases there has been no examination of underlying problems at workplace level which can give rise to frequent disputes. It is the intention that where organisations with industrial relations problems come to the notice of an industrial relations officer the officer will be able to suggest that the parties seek the help of the advisory service to be provided by the commission. The advisory service will be in a position to help management and unions in individual employments to examine and review some or all of their industrial relations practices.

The commission will also be charged with drawing up codes of practice in consultation with interested parties. I see this as being a very important task for the commission and it is my intention that codes of practice should provide a valuable source of guidance for employers and trade unions on particular issues. The preparation of codes is closely related to the commission's function of promoting good industrial relations and improving industrial relations practices. Failure to observe a code will not render anyone liable to proceedings, but provisions of a code will be admissible in evidence to a court or industrial relations agency.

The commission will be able to prepare codes on subjects chosen by itself or at my request. It is my intention as soon as the commission is established to suggest priority issues on which codes should be prepared. These issues include: a dispute procedure setting out the procedural stages to be followed before industrial action is taken; provision of information to and consultation with employees on the activities of the undertaking and on decisions likely to affect employees; levels of cover to be provided in the case of disputes in essential services; and protection and facilities for workers' representatives in the company.

Other issues on which codes might be successfully prepared are individual grievance procedures, and disciplinary procedures. The list is not exhaustive and the commission will no doubt have its own proposals in relation to codes of practice.

When a code has been drawn up I will be empowered to promulgate it in a statutory instrument thus underlying its status and importance but without creating new legal obligations for employers and trade unions.

As regards joint labour committees the Bill contains provisions to improve the procedures governing their operation and establishment. There are also a number of technical provisions to improve the enforcement of the terms of employment regulation orders and registered employment agreements. I would hope that the improvements in relation to joint labour committees and employment regulation orders will make the committees more effective. They will also make it easier and more attractive for low paid workers to seek to have new committees established or to seek the registration of agreements.

I am confident that the range of measures provided for in this Bill will make an important contribution to industrial relations in this country. A stable industrial relations environment is crucial if the country is to realise its full economic and employment potential. The creation of new employment and the preservation of existing jobs remains the number one priority. The success of the Programme for National Recovery demonstrates the advantages of a consensual approach to the attainment of common goals. I am confident that with the commitment and goodwill of all sides a further programme can be put in place which together with the measures provided for in this Bill will ensure the development and maintenance of industrial relations peace for the foreseeable future.

Industrial relations peace is vital for a sustained improvement in economic activity and employment creation. It enhances Ireland's reputation as a good location for inward investment. The Programme for National Recovery has made a positive contribution to the economic and social well being of the country. The Industrial Relations Bill, when enacted, will be another important element in ensuring a better industrial relations environment. Its contribution will be all the more important and necessary with the advent of the Single European Market and the opportunities and challenges which this will present

I commend this Bill to the House.

Mr. Cosgrave

I welcome the Bill and the Minister for Labour to the House. I commend the Minister on his efforts to date particularly in relation to the Waterford Glass dispute. We all hope there will be a fruitful and satisfactory outcome. We have noted the Minister's statement today in relation to the ongoing dispute at the Irish Press. He would have the support of the House, particularly the Members on this side, in any efforts to resolve that difficult matter at this critical and late stage. However he may not want to add further to what he has already stated today.

All of us welcome the Bill before the House which was the result of many discussions and much research to get the right framework. Anyone interested in our economic prosperity will welcome anything that will improve and sustain good industrial relations. It is fair to say that there has been an improvement in this area in recent times. This has come about because of various reasons but if that improvement can be maintained or improved further, all the better.

Members on my side of the House support the main thrust of the Bill but on Committee Stage we may put down several amendments. We recognise the importance of having good industrial relations in order to attract outside investment. In the light of 1992, it is important for our economic development to sustain good industrial relations. All too often in the past unfortunately there were strikes for various reasons. There was fault on both sides. There have been problems with management who, at times, failed to recognise or foresee difficulties and the problem gradually worsened. Sometimes that led to closures. There have also been problems on the other side where strikes may be called too quickly or for what would appear to reasonable people to be trivial reasons. I do not want to dwell on that.

There are two sides to these issues and it is important to state that. We must learn from our mistakes and not repeat them. We should have certain procedures and guidelines and a good industrial relations policy that would ensure that, as far as possible, strikes would be a last resort. Strikes cause inconvenience to the public and damage the economy. The Minister said discussions took place with the social partners to arrive at a new framework that would strike a fair balance and which would, as far as possible, be acceptable to both sides.

We have antiquated legislation some of which dates back to the 1800s and early 1900s. I have made the point before that legislation should be periodically reviewed. Far too often we have Bills 16 or 17 years old being amended or repealed. That has been a problem.

The Bill seeks to strike a fair balance in relation to reforming trade dispute law, having pre-strike secret ballots and so on. It is very important to restrict the use of injunctions. There has been recourse to the courts when, in many cases, matters could have been resolved by using other frameworks. It is wrong to ask a High Court judge at his breakfast table to grant an injunction or to get him up out of bed to grant one. There are obviously cases where this is necessary, for example, where personal rights are being seriously infringed as happened last week where an injunction was sought at the last minute to stop someone being deported — but in relation to labour law and strikes, etc., there should be certain procedures to which both sides would adhere and injunctions by and large, should be sought as a last resort.

In relation to the operation of the Labour Court and the new Labour Relations Commission, I agree that the Labour Court should do what it was set up to do and be used as a last resort rather than as a place where one goes on the first day of a dispute. That may be an oversimplification of the case but we seem to skip a lot of other procedures, rules and regulations and suddenly head for the Labour Court. I hope that with a better framework disputes will be thrashed out and discussed between the people involved. When the Minister is replying perhaps he will let us know if it is envisaged that the commission will not just be another layer of bureaucracy but will sort out these disputes at an early stage without the parties having to go to the Labour Court.

It was interesting to hear the Minister's figures in relation to the number of cases heard before the court. It is a very necessary and useful tool in the whole area of industrial relations but it should not be a case of people suddenly heading for it. It is important that discussions be entered into and that there be a recognised set of procedures in relation to notice of ballots, secret ballots, and so on together with a code of practice drawn up by the commission in conjunction with the social partners.

It is important that the Labour Court be a court of last resort rather than one where matters are dealt with immediately. It is also important that there be full discussion in relation to matters such as pay, practices, conditions, privileges and rights and in relation to various work practices prior to someone going to the Labour Court. Very often, cases are settled before they reach the High Court and that should be the way with the Labour Court.

We welcome the main thrust of the Bill. The Minister has acknowledged that some amendments were introduced at the instigation of our spokesman in the Dáil, Deputy Jim Mitchell. We have a common purpose and that is to produce a framework for industrial relations that will see us into the next century. Hopefully, we will attract further investment and strikes will not be par for the course. This is important because at times we had strikes which gave the country a bad name and hurt many innocent people.

Our main aim in all of this is to improve industrial relations and achieve economic prosperity. It was disturbing last week to see the latest unemployment figures and if we do not have the right industrial relations policy they will not get any better. I do not want to dwell on those figures but they are disturbing for this time of the year. I am sure the Minister is as concerned as everybody else.

Akin to a good industrial relations policy and conditions is the whole question of pay and taxation. It does not matter how much pay one is on, the question is how much can one take home and how far will it go. You can have the greatest industrial relations policy but if people cannot survive on their take-home pay, that is of little use. I am sure the Minister would be one of the first to recognise that taxation policy and the policy in relation to job creation are relevant to the Bill before the House.

When does the Minister envisage that the commission will be set up? The functions of the commission are set out in section 25. It may well be a substitute for the Minister intervening in disputes. While it will always be necessary and welcome to have a Minister who can literally get the parties together, the commission will be able to report before matters are referred to the Labour Court.

I hope the Minister will confirm that full discussions will take place with the various social partners prior to people being appointed to the commission so that the right people are appointed to the satisfaction of the various social partners. Will staff be transferred either from the Minister's Department or from the Labour Court to the commission? Can he assure us that the money will be there to set up and service this commission and that it will not just be another layer of bureaucracy? Not too long ago the Ombudsman — an office we all recognise has done a lot of good — found his work load was getting bogged down. We have seen a similar situation with the commission looking at Garda complaints. I ask the Minister to give an assurance that there will be sufficient funding for and personnel in the commission.

It is grand bringing in a Bill like this but if there is a shortage of staff it will not work. We do not want to see the chief executive of the Labour Relations Commission saying he has no staff and cannot investigate complaints. The commission's role could be exceedingly important in investigating and hopefully resolving disputes. It is important that the commission, if it is to do its job properly, be given some finance, muscle and teeth. Can the Minister assure us that adequate personnel and money will be provided? We do not want to build a totally new empire but we want the basic oil in the machine to keep it running.

It is also important that when the codes of practice under section 42 are being drawn up that the present codes of practice be examined and reviewed. There must be full discussion on such matters as dispute procedures, information that is given to one side or another, protection of workers, codes of practice as to how grievances are dealt with, disciplinary procedures and so on. If we get it right at the beginning a lot of good could come out of it. If there are problems and if both sides do not get a full hearing there will be difficulties.

The primary role of the labour commission should be one of prevention. It should try to anticipate problems. We have seen long strikes where after a certain stage the strikers have nearly forgotten the original problem. Strikes have to end one way or the other, hopefully with a resolution. All Members whether they were involved in labour law or not, recognise the problems and difficulties. Everyone wants to see problems resolved because that is in the interests of their future and the future of their children. It is easier to work in peace than with a lot of rancour.

It is important that when regulations, rules and codes of practice are being drawn up there should be a full discussion and an indepth research carried out. If these regulations are to stand the test of time, they must have a good foundation. It is important to ensure that we have good industrial relations. The main aim should be, as far as possible, to prevent strikes. There have been some very damaging strikes. There must be recognition at management level that workers cannot be taken for granted and full dialogue must take place.

I agree that for the size of the country there are too many unions and there is a case to be made for fewer but stronger and bigger unions. Anything that could be done in that area would receive our support.

We welcome the main thrust of this Bill. We welcome the intention behind it and hope that following its passage and the establishment of the Labour Relations Commission we will have in place a strong industrial relations framework and a strong plan that will resolve problems at an earlier stage. Hopefully, also we will have in place practices which will sound an early alarm bell which will prevent fire brigade action at a later stage. This is in all our interests. I support the Bill.

Mr. McKenna

I welcome the Minister to the House and congratulate him on bringing forward this most important industrial relations legislation. I also congratulate him on the excellent job he is doing as Minister for Labour and has done over the past three years. Everyone will acknowledge that his is an extremely difficult area and he has shown outstanding ability. It is an extremely complex and difficult area because you are not dealing with any other form of legislation or activity, you are dealing with human relations, for which it is extremely difficult to legislate. You cannot legislate people into corners. The Minister must be complimented for providing a framework where individual sectors, employers and employees will be in a position to settle their own grievances. I reiterate the sentiments expressed by Senator Cosgrave in wishing the Minister well in his efforts to resolve current disputes. Hopefully, there will be a fruitful resolution in the not-too-distant future.

The legislation before us is designed to provide a better framework for collective bargaining and the settlement of disputes. It contains a number of extremely important clauses by way of changes in trade union law and in industrial relations generally. There has been, with one or two notable exceptions, a tremendous level of co-operation and consensus in the area of industrial relations through the Programme for National Recovery. People might be tempted to ask: why do we not leave well enough alone, why is there a need for change? This legislation is designed to make an improvement in the law which will facilitate the better operation of our industrial relations system in the 1990s and into the next millennium. As the Minister stated, there have been exhaustive discussions between him, his Department, the ICTU and the Confederation of Irish Industry, prior to the drafting of this legislation. In all cases, the Minister went to extreme lengths to tease out the different areas before this legislation was brought before the House.

It is now time to update the industrial relations legislation. I do not think that can be questioned. The present law relating to the trade unions was mainly enacted at the beginning of the century and the 1906 Trade Disputes Act provided a framework which allowed trade unions to grow and prosper. As we speak at the moment, it is still the definitive legislation which governs trade union disputes in this country. The 1906 Act affords legal protection to almost any industrial action taken by a group in a trade dispute. The funds of trade unions are protected from all actions for damages. It is claimed that the law, which normally involves penalties for those who do not obey the legal rules, is unsuitable for resolving the human problems at the heart of industrial relations practice. This is an extremely strong argument.

Trade unions, because of their historical experience when they were developing both here and in Britain, are very suspicious of the law and understandably so. In the first instance they had to fight for legal recognition when they were beginning to develop and form during the last century. Secondly, they had to deal with a very prejudiced Judiciary at that time. They made it abundantly clear what they thought of trade unions and what they thought of strikes. The trade union movement historically was up against it from the very start and they had to gain their status against extreme difficulty and odds. In the present day the use of injunctions by employers in trade disputes and the support by the courts have also made the trade unions wary of the law as it stands. The problem is specifically addressed in the Bill. As matters stand, legitimate picketing can be stopped by an ex parte injunction.

There is a difference between trade union attitudes to the law on individual rights as opposed to collective rights. Unions are happy to accept a role for the law in the case of individual rights but they are rightly suspicious of changes in the law in relation to collective rights. People pushing for stronger laws than those contained in the Bill should remember that the vast majority of disputes are settled under existing procedures of free collective bargaining by direct negotiations between the parties themselves.

The main objective of this Bill is to make changes that will improve aspects of our industrial relations system. The changes in the law proposed in the Bill are designed to curb the risk of certain abuses. It also aims to expand good industrial relations practices. Industrial peace can become the norm only when trade unions, employers and employees are convinced that our industrial relations structure is fair, efficient and above suspicion.

Of major importance in the Bill is section 1, dealing with picketing. As the Minister mentioned, in making provision in relation to picketing it is extremely important — this refers particularly to places where there would be a number of establishments together, such as shopping centres and so on — that people not directly involved in disputes would not be inhibited in any way and that only the person specifically involved in the dispute would be subject to the picket. That is extremely important. It would be wrong and unfair, in a shopping centre with 15, 20, 30 or 40 different establishments, that all of the people there should suffer where only one person would be at fault, whether an employee or an employer. I am not going to go into the difficulties there, but other people who are not directly involved should be protected. I would like to compliment the Minister on that provision.

The law relating to secondary picketing must be updated. That is of paramount importance because the present legislation is very confusing in relation to secondary picketing. The probability is, as the Minister stated, that the courts would have changed the present process if the Oireachtas had not tackled it. That is very important. Under the Bill the picketing of a second employer will be legal only where that employer helps in frustrating a primary strike. The Minister in his speech said there was a strong lobby that secondary picketing should be abolished altogether. I think the Minister has struck a very fair balance in this area. It is only right that an employer who helps in frustrating a primary strike should have a picket on as well, because in essence that person is involving himself in that strike.

The problem of inter-union disputes is one of the more delicate areas in industrial relations. Such disputes can be extremely damaging and can result in substantial financial and other losses both to individuals and to the country. I remember a factory giving substantial employment to a number of people from my own locality which, because of an inter-union dispute that lasted for quite a substantial period of time, had to close down with a resultant loss of jobs. That had a tremendous affect on my own area. It is only when it comes to you at first hand that you realise the difficulties involved, how difficult it is to pick up jobs if you come from a rural area. If you are in a large urban area there is the opportunity to have access to different jobs. In a rural area if you are lucky enough to latch on to a particular job you hope you are going to hold on to that job for an indefinite period of time.

These types of disputes could cause would-be investors to look elsewhere. This, again, would result in a loss of jobs. I know — and I think it is acknowledged — that the Irish Congress of Trade Unions do everything in their power to resolve inter-union disputes. There are problems, not least where one union may not be a member of Congress. This is a tremendous difficulty. The Bill tackles the problem by removing immunity from worker versus worker disputes.

Section 14 of the Bill deals with the area of secret ballots. As the Minister said, it is probably one of the most imortant sections of the whole Bill. Subsection (2) (a) states that:

the union shall not organise, participate in, sanction or support a strike or other industrial action without a secret ballot, entitlement to vote in which shall be accorded equally to all members whom it is reasonable at the time of the ballot for the union concerned to believe will be called upon to engage in strike or other industrial action...

That section continues in that vein.

I think this is only right and proper. I know we have all had experience of people who have difficulties in this area. It is important that each member of a union would be entitled to cast his or her vote in accordance with his or her views, and without undue pressure from others. It will remove the feeling of intimidation felt by people who might not always agree with the proposals that are being voted on. As the Minister said, it is relatively widespread practice now in quite a number of unions and it is only right and proper that it should spread to all of the other areas as well.

Section 19, to a degree, is an extension of section 14 in that it provides that, where a secret ballot favours industrial action and the trade union gives at least one week's notice of strike to the employer, the employer may not apply to the court for an ex parte injunction without giving notice to the union. Again, this is a very important development, and it underlines the necessity for secret ballots. It protects the trade union from the long time inequity of ex parte injunctions. There is nothing more deplorable than the case where a trade union with a legitimate cause for a strike goes through the process of negotiations and then decides on a formal basis to call a strike, a strike that would be legitimate in every way, and the next thing in the middle of the night, an employer would get an ex parte injunction from some member of the court. That is not right.

As the Minister said, this is a very important clause. Each union will have two years to include the secret ballot as a clause in their rules and any union that does not comply will lose its negotiating licence. I do not know if any union would quibble with that. I think it is just, right and proper that each member of a trade union is entitled to and has a democratic right to a secret ballot.

Another very important area is the Labour Court, which was set up in 1946 to provide a forum where industry in general could sort out its problems. As the Minister said, it was never intended to be a court in the true sense of the word. Each party is free to accept or reject the Labour Court's recommendations. I have heard people argue about this. There is a feeling or suggestion abroad that this voluntary system is a weakness in the court structure. I should emphasise that the court does not enforce the law. As I see it, that is one of the main advantages of the Labour Court, because if there was a question of enforcement the Labour Court would be far less attractive for deciding disputes and people would have little or no recourse to it.

The Labour Court has had an outstanding record since its foundation in 1946. It has at all times recognised the complexities of union interaction and has approached problems in a very understanding and very patient manner. Its success is due in no small way to the attitude and the commitment of the officers and the staff of the Labour Court who have served through the years.

At this juncture I would like to say a word of appreciation and congratulation to all of those officers, who as I said, have to do an extremely difficult job. The area of industrial relations is extremely complex. They do a fantastic job. They have patience. One thing you must have as a negotiator in the Labour Court is an extreme and unending flow of patience.

As the Minister said, the court was intended to be a court of last resort. He gave statistics showing that many disputes have been referred to the court without going through procedures initially intended. The Bill addresses that particular problem and emphasises the need for parties to resolve their differences directly if at all possible. There is an old adage that prevention is better than cure. Senator Cosgrave referred to this. He said he would like to see some form of prevention, where parties would come in before disputes would arise in the first place. The Bill provides for that type of development and it is indeed a very important aspect of the legislation.

The Bill proposes to set up a Labour Relations Commission which will be responsible for the existing conciliation service. This commission will again emphasise that the court is, as it was intended to be, a court of last resort and that we get back to the situation where that pertained in the first instance. The commission will also be the key body in the promotion of good industrial relations. It will monitor and review developments in the area of industrial relations and the provision of an independent advisory service by the commission is a very welcome development. The fact that it is an independent advisory service is very welcome, because people will seek access to that advisory service without any fear that it would be favouring one side or the other. I would hope, therefore, that when the advisory service is set up all sections would avail of it. It would be a tremendous asset in the whole area of industrial relations.

The Bill also gives responsibility to the Labour Relations Commission for another very important area — the drafting of codes of practice in consultation with the relevant parties. I believe that the implementation of codes of practice in the interest of good relations can be of immense benefit. I do not think employers have anything to fear from implementing a code of practice that will acknowledge the contribution of employees and confirm them as a integral part of an organisation.

Employees should be seen as part of a team and the type of approach envisaged in setting a code of practice would recognise that fact. If an attitude was created where employers would not be afraid to consult their employees, to have an open mind in relation to their activities vis-à-vis their employees, not to be trying to pull the wool over their eyes in relation to profits and so on, they would have a very important input in the whole area, even in relation to the boards of directors and that type of thing. I know the Minister is very keen on the provision of worker directors. This is an area the private sector should now consider very strongly within the whole framework of industrial relations. It acknowledges the fantastic contribution that workers make. Without them we are nowhere, and it is important that people recognise that. If that type of attitude was developed the rewards for all sides, both in terms of industrial peace and in the development of industry in general, would be absolutely enormous.

A problem that has been referred to as a cause of concern as long as I can remember is the number of trade unions there are in this country. As a teacher of business organisation at leaving certificate level, I can say without equivocation that in every standard text book on the subject of industrial relations one of the standard reasons given for the cause of trade union problems is the multiplicity of unions here. It results in inter-union rivalry and competition between unions. In this regard the amalgamation of the ITGWU and the FWUI into SIPTU is a major and most welcome step. I am also extremely glad, as a member of a teachers union myself and acknowledging the presence of the leader of one of the teachers unions here, that the teachers unions are moving in that direction. I welcome that development and I sincerely hope it moves along the path to amalgamation as soon as possible. It will have my full support.

The Bill provides grants. It is very important that the Minister recognises how important amalgamations are because the Bill provides grants towards expenses incurred in merger negotiations between unions. There are no real preconditions. Even where merger negotiations fail, the unions involved can claim expenses for the two years prior to that amalgamation failure. The Minister is to be complimented on this progressive approach.

Understandably, over the years because of the historical development of our industrial relations system, the "them" and "us" syndrome which underlines relations between unions and employers has been all too common. I do not think this need be so. With that mentality, no one is a winner; you have a "them" and "us" situation. There is an enlightened approach, which the Minister underlines in this Bill, where we do not seek to score off or outdo anyone, where we work as a team in the interests of all and where everyone is a winner.

The Minister and his Department have done an excellent job bringing forward this legislation. As he has said, it has come before this House after long hours of negotiation between the different interested parties. I reiterate his hope that there will be a new Programme for National Recovery in the coming years because we have had outstanding success over the past number of years under the previous programme. I welcome this Bill as innovative, forward looking and progressive legislation. I commend the Minister for introducing it and I wish him every success with it.

Mr. O'Toole

I welcome this long overdue legislation. To give credit where credit is due, the process of consultation has taken place exhaustively for a long period of time and without a shadow of a doubt all sides — the employers, the trade unions, the Department of Labour, and in particular the current Minister for Labour, Deputy Ahern — have shown extraordinary commitment to get this legislation on the Statute Book.

The nature of a discussion on a piece of legislation like this is, in many senses, negative. We all know what we agree on and, therefore, the tendency in terms of amendments or discussions is to highlight those areas with which we have some difficulty and to raise questions on those areas where we do not agree and perhaps to propose amendments. Therefore, I would like to stress, before going into any of that, that I welcome this legislation. It is positive; it is long overdue. In recent times I read again the Dáil debates that took place during the introduction by Seán Lemass of the 1946 Industrial Relations Act. That was a particularly harrowing time for my union. I intend reflecting somewhat on that when I get down to discussing those people who are workers in different sections under different definitions in the Bill.

I also think it is worthwhile recognising that the Minister in his opening presentation referred to this Bill as being the product of the current programme. I think that is maybe stretching it a bit; I think, in fairness, it was underway before that, but perhaps it was hurried along through the discussions on the Bill. It certainly was something that was under discussion for some period of time. It has been true to say that the mutual recognition of the importance of the social partners has been extraordinarily important to the recovery this country has shown over the past period of years. I believe, unfortunately, the trade union movement has taken the brunt of the criticism in many cases. Having arrived at positions through proper negotiation, time and again we get pasted with the worst end of it.

I will give a very simple example, for the information of the House. This is something I previously outlined to the Minister. In regard to the side agreements that arise on the Programme for National Recovery, the one I know best is that concerning the basis of the staffing of schools. The Department of Education have an abominable habit nowadays. When they are rejecting an application for extra staffing to a primary school they will write out letters — and I have seen one as late as this morning — saying that because of the agreement between the Government and the INTO we are now not able to sanction an extra staff member for the school. To me that is the essence of bad industrial relations, that is the essence of pettiness. That is where a lack of trust begins and that is where difficulties are created. I would not mind if it were on the other side of it, that when the Minister was sanctioning a post they would say: “I am happy to let you know that because of the agreement between the Government and the INTO we are able to sanction an appointment in your school.” That, of course, is not what happens. That is the kind of pettiness that operates and creates trouble down the line for people.

I am not in any sense setting that charge at the Minister for Labour because I know he has always shown a lot more sense and sensitivity in dealing with these things and that this would not arise in his section. It is something I have to cope with every day of the week. I resent it deeply — that when there is bad news it is the union's fault and the good news is the Government's gift. To add fuel to the flames, schools are mostly informed of extra staffing by a visit or a letter or a phone call from the Government TD or Senator for the area. I find that more than appalling. I find it unacceptable. It is "stroke" politics of the worst kind.

(Interruptions.)

Mr. O'Toole

I am a realist and a pragmatist. It is there and I will point it out. I will highlight it. I will ridicule it but I can do no more than that.

We have developed over a period of years. The trade union movement is a highly sophisticated, responsible organisation. It represents workers at all levels from the highest to the lowest. The importance of its role in Irish society is clearly recognised — certainly by the Minister for Labour — and always has been. I have no hesitation in putting it that widely. Unfortunately, there is still a very negative view of the trade union movement in many places, not least among Members of the Houses of Parliament. I have certainly come across quite a lot of it. There is still out there the view that trade unions have the job of keeping people in employment who should not be in employment, that the trade union movement's objective in life is to keep the bad worker in the job. Of course, nothing could be further from the truth.

The developments over the last period of years have indicated that trade unions take an increasing interest in the product at the end of the day. I use that word in its widest sense. One of the major objectives of my own union, the INTO, and I know it is the same for my colleagues in the ASTI and the TUI, is to improve and develop the educational service and to give the best possible service to the country. that has to be the case. In January 1988, when the Minister for Labour introduced the Worker Participation Bill, I spoke of the need for workers to be interested in the problems of their company, that nothing created more problems in the work place than the sudden news that the company was going down the tubes, that there were going to be redundancies when everybody was suddenly in a panic, whereas the sharing and the distribution of information over a period of time before that would have had everybody dealing with the same problem, concerned to find a solution and would have created more of an agreed position.

I also feel that the trade union movement itself is of value to the country and it is a movement that has time and again helped to resolve problems. One of the side aspects which I, as an incoming trade union general secretary would be very aware of, is the cost that has been imposed on unions by some of the legislation here. Secret ballots are going to be a costly exercise for many unions. I am not saying we should avoid it from that point of view. I am just making the case that all the developments, even in terms of the law here, create more and more cost for unions. Unions now spend a huge amount of money per year on legal costs. What I welcome more than anything else about this Bill is the attempt by the Minister to exclude the law courts from industrial relations. The law courts have no place in industrial relations. They should not be used, abused or introduced like they have been. It has become like a circus over the last 15 years. I do not think it is going to work. I am not blaming the Minister for that, I am not blaming the trade unions for that, nor am I blaming the employers for that. Our law is so complicated that I do not honestly think it is going to work, though I applaud the attempt to do so.

As a rule I have excluded within my own union the representation of lawyers in domestic tribunals which in the first place were set up to be dealt with by unions. It has given myself great personal pleasure to take on lawyers in these domestic tribunals, because the reality is that any half-baked trade union official will know ten times more about the operation of the job or of the conditions of service than any lawyer. I love to see a lawyer on the other side of the table.

Sitting suspended at 9 p.m. and resumed at 9.30 p.m.

Mr. O'Toole

I was dealing with some aspects of the rising financial cost to the trade union movement of supplying a service to their members. I think the Government of the day should be mindful of the fact that even something as simple as the proposal to insist on a secret ballot does increase substantially the costs of unions in an industrial action. I am not using that as an argument against it, I am just using it as an illustration of the kind of costs they can run into.

There are various aspects of this Bill. I will be referring to the internal domestic remedies and whether they have been exhausted in the case of individual members. Many of these things are going to call for more legal advice. I was saying before the sos that whereas I welcome the Minister's and the Government's intention to try to remove the courts of law from industrial relations, I did not think we had the remotest possibility of success in this area. I think the lawyers will see this as an opportunity to make a killing. More and more of the resources and finances of unions are being eroded by legal costs in terms of advice, of representation and otherwise.

There is one area in which we have lost out. The Minister is very committed to an organised workforce. Irish Governments over a period have seen the value of an organised workforce. However, one of the real difficulties we have is with multinationals coming in and more and more problems are being created by multinational and international companies who insist on non-union workplaces. I am not saying that we should make it a condition that they would organise, but what worries me is that a lot of Irish people think that is very smart and very clever. All it actually does is to lead to the exploitation of our own people. At the end of the day it is in everybody's interests to have proper, responsible and effective representation of workers. The reality is that the patronage which is being given by some of these sweet international and multinational employers goes very sour indeed when we have workers very poorly treated.

The General Secretary of Congress, Peter Cassells, recently gave an example of the shop on the corner, that is, the 7-Eleven chain of stores who refused to employ organised trade union labour. I have raised this with many people in general conversation, not at public meetings, to assess reaction. Very many people think this is a very smart move. What they are actually doing, and this happens in every case, is bringing in cheap labour. This goes back to the very basis of the trade union movement.

Companies like that which are irresponsible enough to insist that their workforce do not become organised are not doing anybody a favour because they are trying to undercut the competition in a most unfair way. I believe that should be considered by the Government as a form of unfair competition because, in reality, the mentality which says if they are prepared to work for it they are getting enough, does not really wear. You will always find people to work no matter what amount of money you offer, and I think the idea of a fair wage for a fair day's work is something we should look at. A national minimum wage would certainly deal with some of those issues in the long-term.

The question of industrial action is dealt with in section 8 of the Bill. I have read the definition of industrial action and I do not understand it. It is in very simple English but I still do not understand what it might not mean. I can understand what it might mean but I do not understand exactly what it might not mean. It reads:

"Industrial action" means any action which affects, or is likely to affect, the terms or conditions, whether express or implied, of a contract and which is taken by any number or body of workers acting in combination or under a common understanding as a means of compelling their employer, or to aid other workers in compelling their employer, to accept or not to accept terms or conditions of or affecting employment.

I am not sure what that means. I am sure this has been debated in the other House but I have not read the debate in the other House because I always find it distracts me from what I want to say here. Maybe the Minister has been through this a million times. Certainly I have read the newspaper reports on aspects of it and it seems to me that a work to rule is not a breach of contract. A work to rule, for instance, is an application of a contract. Is a work to rule industrial action? I am sorry if the Minister has been asked this question many times before, I suspect he may well have been, but I do not know that he has and I do not know what answer he has given. I just need to be informed and I want it quite clear in my mind.

I make a very clear distinction between industrial action and strike action and I cannot find the reference to this in the Minister's speech today. But I notice in one part of his speech today that there is an interchange between industrial action and strike action and then just simply strike action in another place. The two are quite different. I am making the point that I was quite aware of that when I was reading the Minister's speech. I will not go back over it but it is there.

I think the phrase he used was "the need for secret ballots for strike action". Is he using this as a justification for what is in section 8? I do not have a problem with secret ballots for strike action — I will deal with those later — but I do have a problem with the general idea of a secret ballot for industrial action. I think there are lots of problems with that. First, the Minister is pushing people over the edge because he is saying that if we are going to have a ballot we will make it serious action unless certain things can take place, like a work to rule or work to contract. A work to contract is not a breach of contract and I do not see how it would be operable.

As I said earlier I think many aspects of this Bill are going to be tested in the courts again and again and that is certainly one of them. I want to make my own views clear on it. I believe the traditional strike weapon is now outmoded. It is ineffective in many ways. The total withdrawal of labour for an undetermined period of time is no longer a successful and efficient way for trade unions to carry out their business. That is a personal view. Nowadays the battle is won in the hearts and minds of people, it is won in the media, in the pubs, the lounges and the sittingrooms. Nowadays it is a matter of convincing people of the worth of one's argument and I take that view. I do not have a difficulty with the question of a secret ballot. Maybe that is because my own union, the INTO, has had a secret ballot for industrial action for years, for as long as I can remember. I take the view that if right is on your side, as it should be before taking strike action, then you will be able to convince the members of that and you will get the vote if that is what is necessary. I am speaking as a trade union official on that point.

I want the Minister in his response to deal comprehensively with this issue of industrial action as opposed to strike action. Is work-to-rule an industrial action? I do not believe it is. Industrial action is any action which affects the terms or conditions of a contract. I am leaving out the extra clauses. A work-to-rule would not affect the contract in the sense that somebody could not be suspended or action could not be taken against a person for working to rule because that person would be working to the terms of his or her contract. I would like a comprehensive response from the Minister to that and it will be important to place it on the record as well. If workers decide, for example, that they are not going to do overtime and they are not required under their contract to do overtime, work unsocial hours or so on, what happens in such situations?

Section 12 of the Bill is the 1906 Act in the new terminology. It removes the liability for certain acts under the 1906 Act. I could speak at some length on that but I wish to make just one brief statement on it. I have been appalled since we set up the Free State by the difference of interpretation of that Act by the Governments in the two states; the very broad and liberal interpretation that has been undertaken of that Act, particularly in the definition of a worker, in the English and Welsh courts. I am not sure about Scotland as they have a different court system there. Their interpretation of a worker was far more liberal and the protections under that Act were far more liberal than was the case here. That Act had to be amended at some stage. In the seventies or at the beginning of the eighties we had much discussion on it in order to extend the protection. I was very conscious of the fact that teachers at that time were not covered.

In the section of the Bill it is protection against action for tort and it is an immunity against the tort of procuring a breach of contract of employment which is straightforward enough, an immunity against the tort of intimidation etc. and an immunity against the tort of interferring with a trade or business and various things like that. Of course I welcome that. This is very important but having had the sore experience of being at the receiving end of a breach of constitutional rights arising from industrial action at incredible cost, well publicised, to my union, I regret the fact that this legislation makes no attempt whatsoever to protect unions from actions for breach of constitutional rights arising from the withdrawal of labour, for instance, under the terms of the Act. In other words, if a union complies with all the terms of this legislation, goes through all the steps and then decides to take industrial action and this gives rise to a case where, for instance, somebody takes a case for breach of constitutional rights, in other words of being deprived of primary education, which is guaranteed under the Constitution, in such a situation there is no protection whatsoever. I would like some comment on that from the Minister in his response. Here we have two constitutional rights — the right to work and, consequentally, the right not to work or to withdraw labour and there is also the right to free primary education. If a court were to hold that the action of a teachers' union was to deprive somebody of their constitutional right let us say to free primary education, there is nothing in this legislation to protect the teachers' union involved. That is just one example and there could be others also. I would welcome the Minister's views on that.

I like the optimism of section 15. I suspect it was written by somebody who does not know the Registrar of Friendly Societies or who has never had to have a rule book processed through the Registrar of Friendly Societies. I quote:

The committee of management or other controlling authority of a trade union shall, notwithstanding anything in the rules of the union, have power by memorandum in writing to alter the rules of the union so far as may be necessary to give effect to section 14.

I will believe that when I see it. I have no problems with it but I do not believe it will work. The consequential changes in legislation are somewhere mentioned in the Bill but I cannot find them but I certainly want to hear where they are. I have not the slightest doubt that the Registrar of Friendly Societies would say: "Sorry, I cannot do that under the powers in the Bill".

The normal situation in a union which wants to change its constitution is that it has first to send out notices to the branches before Christmas. All the branches then have to issue notice of that change of rule to every individual member in time and before the agenda of the AGM to allow them to make any amendments. The AGM in January will discuss them. They are then put on the agenda for the annual congress at Easter but it then requires a two-thirds majority. They are the rules that have been implemented in my union and it is the same in most other unions and they have been endorsed by the Registrar of Friendly Societies. I do not believe section 15 will run.

To get a rule book through the Registrar of Friendly Societies at the moment is a long, wearing operation. There is hardly a change in rule that does not come back for some assessment. Many unions have three or four contacts a year with the registrar. Where is the Minister empowered to do that? The legislation that set up the Registrar of Friendly Societies was back in the last century but what changes have we made in order to allow that to take place? There will be real problems with that section. How does the Minister envisage it working? I am certain if a union tries to do that next year the Registrar of Friendly Societies will send it back and say: "That has not gone through the process". In other words, the Minister is saying "notwithstanding anything in the rules of the union" but that will not run with the registrar. I have not the slightest doubt about that. Even if the amending legislation is enacted it is going to create a huge conflict. I look forward to that because we have had ins and outs with that office for a long number of years in trying to get things sorted out.

In section 14 I very much welcome the recognition given to the ICTU. I had long arguments with the Minister's colleague in a different Department during the discussion here on the Companies Bill where I particularly wanted the involvement of the unions as responsible partners to be duly recognised in legislation. I welcome this development here. It is important. However, I doubt if we will be able to get around the Registrar of Friendly Societies on it.

On the question of the secret ballots, I do not have a difficulty with it, but I do have one problem. It is a very practical one as somebody who has been in the situation. I am reading 14 (2) (f) which states:

as soon as practicable after the conduct of a secret ballot the trade union shall take reasonable steps to make known to its members entitled to vote in the ballot:

(i) the number of ballot papers issued,

(ii) the number of votes cast,

(iii) the number of votes in favour of the proposal,

(iv) the number of votes against the proposal, and

(v) the number of spoilt votes.

If I am in the middle of a dispute and I go looking for industrial action and get support from my members for industrial action by 1 per cent, 51-49, there is not the slightest possibility that I would want to make that information public during the course of a dispute. It would be damaging to my union, it would be damaging to my members, it would weaken my hand in negotiations and it would do nothing to improve industrial relations. Therefore, it has no place in the Bill if it means immediate. I want to know can "as soon as is practicable" be interpreted to mean at some stage following the dispute, for instance? Why is there a requirement that that should be done? Is it a requirement that it should be done during the course of the dispute or before the industrial action? I would find it most impractical for that information to be made available to the adversary, to the enemy, during the course of a dispute. I would refuse to do it. It is like playing poker with your hand showing up and everybody else holding their cards to their chest. It is not on. Let us level the playing pitch. I do not mind playing five card stud but I would like us all to be clear on what we are doing.

There are very clear outlines in section 16, section 17 and so on about what happens to unions which do not comply with the set of regulations on secret ballots. There is another side to it. What would happen — and this has happened in Britain on a number of occasions — if an official of a union was seen to interfere with the result of a secret ballot? I am not saying up or down, for or against; I just want to know where the Bill stands on that particular point. The reason I raise that point is that in the UK Transport and General Workers' Union last year they had to do a rerun of a ballot and it cost them about £0.5 million. It was alleged there was interference by the union head office or by some branches of the union with the correct conduct of the ballot. If we were to vote for the secret ballot, the details of how that might be carried out might have been fleshed out a bit more as to who does the counting and where it goes. There are aspects of this that worry me somewhat. If we are going to go into it, I would certainly like to have more constraints on it.

I would like to address section 22 and the question of rationalisation. I have a vested interest in this. I see my colleague, Senator Joe Costello, currently President of the ASTI, who will have a similar interest in this. The section deals with grants towards the expenses of amalgamations or transfers. I just want to be clear about this. The movement towards the amalgamation of unions is a slow and painstaking process. I would like to hear the Minister in his response to Second Stage spell out for us whether there is a difference. He used the words "transfer of engagements" in some cases and "amalgamation" in others. Is there a difference between the two? Are those words synonymous for the purposes of this legislation or are they separate? There could be many states of amalgamation before the actual transfer of engagements and I think that process could take longer than two years. I would like to have the situation that would arise spelled out.

If we take the case — one I have currently an interest in — of the three teacher unions, referred to earlier by Senator McKenna. He, being a member of the Teachers' Union of Ireland, would have a very significant interest in that. The position is this. The three teacher unions would be discussing at the moment the question of amalgamation, working closer together, and having the objective of creating at some stage some form of union structure incorporating all three unions. The question of transfer of engagements might not arise for a long time. In other words, if there are three unions there at the moment with certain areas of responsibility, let us say they have set up a superstructure, a structure over the existing structures, and that they were to give certain responsibilities to that superstructure — let us say the responsibility to negotiate pay and allowances, salary and allowances — at the moment the unions operate under the single system of salary and allowances and they work very closely together. If they were to say, "okay, we are now going to give you the authority to look after negotiations on behalf of the three unions on salary and allowances", that is not necessarily a transfer of engagements. What it means is that the three unions have now set up a further structure to deal with certain aspects of the work of the union, certain parts of the responsibility of the union.

They might also say that this superstructure would look after the publications of the three unions and the benefits for union members because it would be easier to deal with them for all the unions than each union working separately. This union might also look after, say, trade union training and education of members and things like that. In this instance the three unions still exist and are still registered as bonded trade unions but they have set up an extra structure or tier which would, in effect, be doing the work which up to now was the responsibility of each individual union, but it would be subject to the individual unions as they still exist.

That process might develop towards a closer confederation after a time and then to a closer federation with a written constitution, and then perhaps some sort of a closer structure beyond that where there would be some form of single union. If that process takes longer than two years, it cannot be said to have failed obviously because it is still progressing but since it has taken longer than two years, at what stage does the Minister for Labour, sign the cheque on that particular one? I would like to hear that teased out. It is a real problem not just for the teacher unions but for any union that is going to take a period of time to move into it. To do something like this is going to be costly. That is why I thoroughly support the idea of grants towards this kind of development. It will not be cheap but it is going to take a lot of time and extra personnel and I would want to be clear about how the money is going to be paid, particularly if it goes beyond the two year period. If it is clearly seen to be leading towards closer unity or moving towards some form of a single union, at what stage does the Minister say, yes, that is going ahead all right?

What annoys me more than anything else in this legislation are the two definitions of "worker" under section 8 and section 23 — one for the purposes of the Labour Court and the other for the purposes of what was the 1906 Act, and is now Part II of the Bill. It seems that my own members, teachers, are considered workers for the purposes of the protections in Part II of the Bill, but when it comes to Part III, they do not have any access to the Labour Court. That annoyed me so much over the years that it is only in recent years that I can speak about it without becoming annoyed.

For years and years, I have had great difficulty in trying to work out why it was that national teachers did not have access to the Labour Court but I could not get an answer from anybody. I eventually went back to the discussion that took place in the Dáil in 1946 on setting up the Labour Court — the Minister referred to it, to the presentation by Sean Lemass as Minister for Industry and Commerce of the Industrial Relations Bill of 1946 which set up the court. It was like the night of the bombs in Dublin. The night it was going through the House 6,000 of our members were on the streets in the middle of a most bitter dispute with the Government. There is no doubt in my mind that is the only reason we were excluded from access to the Labour Court and that we got this nonsensical section 23 which says that in the Industrial Relations Acts 1946 to 1976 "worker means any person aged 15 years or more who has entered into or works under a contract for manual labour, clerical work except a person who is employed by or under the State ... a teacher in a secondary school, a teacher in a national school and an officer of a vocational education committee."

I mention that last one because there has been some dispute in the past two years as to what was an officer and a servant of vocational education committees and some VECs took the view that their teachers were servants and others took the view that their teachers were officers. That led to confusion and teachers in the vocational sector certainly on one occasion, had access to the Labour Court on the basis that they were considered to be servants rather than officers.

It is disgraceful, it is unsustainable, it is untenable. It means my union are the only union I know who do not have access to a conciliation and arbitration procedure for conditions of service and do not have access to the Labour Court. If there is another group of workers in the State with that difficulty I will eat my words. I am not talking about access to the Labour Court only. The national teachers are the only group who have neither access to the Labour Court nor to a conciliation and arbitration procedure. This leads to all sorts of problems and I would like to hear the Minister's view on the matter. I raised it with him in January 1988 in the middle of other difficulties. At that particular stage the view of the leader of the present Government and the leader of the then Government was that this was something which should be looked into. There have been problems in between about getting involved in it. I want to hear the Minister's justification for excluding national teachers from access to the Labour Court, considering that they do not have a conciliation and arbitration procedure with the Department of Education in order to deal with conditions of service.

It is untenable, it goes against everything in this Bill. It goes against all the speeches that have been made about it from all sides of the House and from all sides of the management-labour-Government triangle. In fact, in the 1946 debate there were constant references to the teachers on the streets. I regret it very much. It has caused a lot of damage and difficulty over the years. It is unjustifiable.

That leads me to the question which is not clear at all from the legislation. Section 23 continues the ban on national teachers of access to the Labour Court. I get the impression from it also that it refuses us access to the commission but I am not clear about that because it does not actually outline who and what groups or workforce has access to the Labour Relations Commission. This is very significant and it will be of importance to those workers who are excluded from the Labour Court. Perhaps the Minister has been through this in the other House but I would want to hear it for the record of the House, I have not seen it discussed anywhere else.

Are the groups of workers mentioned in section 23 (1) (a) to (f) barred from access to the Labour Relations Commission? I quote the relevent paragraphs:

(a) a person who is employed by or under the State,

(b) a teacher in a secondary school,

(c) a teacher in a national school,

(d) an officer of a local authority,

(e) an officer of a vocational education committee, or

(f) an officer of a school attendance committee.

Can the functions of the Labour Relations Commissions to prevent and resolve disputes be used in those areas? If not, it seems odd that at the beginning of Part III we have put in this exclusion paragraph which is an anathema to me. Does it apply to the whole of Part III of the Bill? I want to know if the people who are excluded from the Labour Court will also be excluded from the Labour Relations Commission. That should be made absolutely clear in the Bill. I want to know how it will be interpreted. I believe it should have been made absolutely clear that if they are excluded from the Labour Court they may not be excluded from the Labour Relations Commission. Of course, I am quite conscious of the conflict this will create if the Minister stands up and tells me they have access to the Labour Relations Commission but do not have access to the Labour Court because the raison d'être of the Labour Relations Commission is that it solves problems before they go to the Labour Court and, therefore, there is another vacuum created down the line.

Section 8 deals with the definition of an employer. Under the terms of the 1906 Act an employer was someone who employed workers and in the famous case of the pub in Artane where there was a dispute the company renamed itself. It did not employ any workers but made all the previous workers directors of the company, and all the directors did the bar work, etc. Therefore, for the purposes of the legislation, they were not seen to be employers. I am simplifying a very complex case. This Bill does not seem to have tidied up that anomaly or escape clause and I would like to hear the Minister's views on that aspect of the legislation.

I welcome section 24 on the Labour Relations Commission. It is necessary. I can think of situations even in Leinster House in recent years where it would have been very helpful indeed. I can think of many other examples also where it would have been useful. It gives greater authority to the Labour Court by having this intervening position. We now have the structure of the Labour Relations Commission and the Labour Court, but at the top of the pinnacle is the Minister. Now it will be the Labour Relations Commission, the Labour Court and the Minister for Labour. We very often hear in the second day of a dispute that the matter has been referred to the Minister for Labour. That is not a very desirable practice and I am sure the Minister shares my views on that. One's effectiveness becomes eroded by constant exposure and it becomes more difficult to accomplish one's objective.

I am quite taken by the directive given to the Labour Relations Commission that their job is the prevention and settlement of disputes. That is very important. It is straightforward. They go in there and settle the dispute or try to prevent it. I am not quite sure how they go about preventing a dispute or at how early a stage, but I see that reports have to be done on that kind of thing. They can decide to look at things of their own volition and they can be directed by the Minister to look at certain things. I would like to hear more about that. If a trade union felt that the involvement of the Labour Relations Commission might be useful and helpful in resolving a dispute which was imminent, how do we get the ball rolling? Does somebody make a telephone call to the commission or what? I would like to hear about that practice.

I have some worries about section 9 (2) which relates to domestic remedy in individual cases. My worries are based on experience of this section. It is saying that before somebody can have access to the courts on an individual case of suspension, sacking, removal, recognition or whatever, that person must have gone through some kind of domestic remedy. I am sure we are talking about local grievance procedures where there is an agreement in the employment that when difficulties arise, we set up a tribunal or we go through an informal, formal and then tribunal stage to resolve the difficulties and if that has not been done, there should not be access to the courts.

I have no difficulty whatsoever with that thinking. I have always advised that judges should throw out cases if people have side-stepped a local domestic remedy for dealing with the problem. However, through bitter experience, I do not believe that will work as it is written in this section. The difficulty lies with domestic remedies.

Let us say we are setting up a company and negotiating different conditions of service, pay and so on. The usual procedure is gone through, and there is generally an air of co-operation. In the middle of these negotiations somebody says: we should also have some way of dealing with grievances that a worker might have or any problems that might arise rather than having conflict. That is a very praiseworthy objective and it is recommended by the ICTU to all their member unions that they would have ways of dealing with these problems by some sort of grievance procedure. The difficulty, however, is that these issues are negotiated in good faith in peace time and the nit-picking and the dissention only start when the war begins or when they are in the middle of a problem. My difficulty is that whereas I agree with the thrust of what is in that section, what happens if the domestic procedure is challenged as being in breach of the tenets of natural justice or constitutional rights?

Suppose the grievance procedure is set up in such a way that the person who has appealed to it says it is not fair, that that cannot be right, that he is not getting a fair trial, that a fair investigation is not being carried out. There must be a way of testing that. Somebody may not be able to go to the courts on the grievance but that person could well go to the courts on whether the grievance procedure at factory floor level was legal and constitutional and was in the context of natural justice and constitutional rights. I want to know about that.

Domestic remedy, in very extreme cases, can sometimes have what is called a safeguarding suspension. If a very serious allegation was made about a worker, he might be immediately suspended. That happens in the Garda Síochána quite regularly and in other workplaces as well. In the UK last year officers of the British Midland Police were suspended during the period of an investigation. I am not making any value judgements on the reason for that action because I do not want to go into that area, but this can happen at shop floor level. We need to be careful here. It is not so clear cut that this would work if the procedure operated at local level was clearly and absolutely legal, correct and constitutional and also tight. I want to deal with that.

Grievance procedures and domestic remedies tend to have stages. They all follow a pattern. There is a problem and somebody is on his or her last chance or warning and that person goes through various stages of reprimands, warnings, etc. and then there is a grievance. The way of dealing with the grievance follows the pattern of an informal stage where the employer or somebody representing the employer — in an Irish company the personnel officer — would meet with the worker. The people in the middle of the conflict would meet to try to resolve their difficulties. If that does not work, there is another slightly more formal procedure where the personnel officer or representative of the company and the trade union representative would meet with the two people and the four would sit down together, and they would try to resolve the difficulty. If that does not resolve the issue the next stage is usually some sort of an independent tribunal — you have three people, one representing the worker, one representing management and an agreed independent chairperson. However, there is a question that is not answered in the legislation. The legislation says that the worker will not have access to the court until the domestic remedy is "deemed to have been exhausted". That is easier said than done.

I have bitter experience in these areas and if the Minister checks workplaces right around the country he will find that many of them have a crucial flaw in their internal procedures, that is, there is not a built-in timescale between one stage and another. We go through stage 1 — informal — and it does not work; then go to stage 2 — the formal stage — it does not work; then we say go to stage 3 to get this dispute resolved; stage 3 depends on the employer nominating a representative, the trade union nominating a representative and agreeing on an individual in the middle.

Suppose an employer does not actually refuse to nominate somebody but just does not do it, at what stage does time run out? At what stage do we deem the procedure to have been exhausted? That is a problem that certainly will arise under that stage. It is the individual case that goes to court quicker than any other kind. Unions negotiate across a negotiating table in general terms but the individual with a sense of grievance, with a sense of wrong, will run to the courts. That is another section of the Bill which will be tested again and again in the courts.

I said at the beginning that I would try to be brief. I recognise that I have not been brief and for that my colleagues will not thank me. I could go on at some length. There are many other aspects of the Bill which I intend to tease out on Committee Stage by putting down amendments.

As I am restricting myself to certain areas of the Bill my presentation may sound more negative than I intended. I do not intend to be negative and I certainly do not intend putting this Stage to a vote. I support the general thrust of the legislation. It is positive, and I hope it will work. I have pointed out things I believe will not work, things I do believe will create difficulties, and I have raised specific questions which I see affecting myself — the amalgamation of unions and access to the Labour Court and to the Labour Relations Commission, to which I certainly want to hear replies.

In a general context, taking all things together, I welcome the Bill. I would like to compliment the Minister, Congress and the people in management who saw fit to involve themselves in this. I always recognise in such a triangular set of negotiations the middle point will not satisfy anybody. My view is that we should satisfy the trade union movement and let the others fit in with it. This has not been impossible in this particular scene.

It is a tribute to the Minister that since the introduction of this Bill in the other House many changes have been made to it. There are aspects of the industrial action which I have some difficulty with and Congress have some difficulty with, but it is a tribute to the way the Minister for Labour operates that he is always ready to listen to one's point of view to try and take it on board if necessary. Those officers of the Irish Congress of Trade Unions who have spent long hours in dealing with proposals for the legislation and indeed the individual unions of Congress, who have teased through the legislation and put forward their viewpoints are to be complimented. Certainly two years ago I had long meetings on this legislation with officers of Congress and looked at the principles which might be covered under the heads of Bill etc. A lot of work has gone into it on all sides. It would be churlish of me not to mention that group of people I support each time I stand up here, the public servants who have drafted this Bill and have worked very hard in putting it together. Many aspects of this Bill are a credit to them. I wish them well in their dealings with the Registrar of Friendly Societies. I believe they will lose but I think they will do well otherwise. I welcome the legislation.

Mr. Foley

I welcome this opportunity to make a brief contribution on this very important Bill. The Minister has pointed out that it provides a framework for the improved conduct of industrial relations and for the resolution of trade disputes with the aim of maintaining a stable and orderly industrial relations climate. The Industrial Relations Bill is to be welcomed. Much has been said on the Bill already and there is a tremendous interest in it. This new legislation is coming at a most appropriate time. We have over the years heard a lot of talk about the Trade Disputes Act of 1906. For many years there have been calls from the public for new legislation dealing with strikes and picketing. The main bone of contention was lightening or sudden strikes.

One point coming through in this new proposal is that of a strike ballot. This was a feature of the 1906 Act with regard to industrial relations and trade union regulations. The measures contained in this Bill have their immediate origin in The Programme for National Recovery. The Minister states that this committed him to holding discussions with the social partners about changes in industrial relations to provide a better framework for collective bargaining and dispute settlement and help to create conditions for employment generation investment.

I would like to congratulate the Minister and the social partners involved in bringing the Bill to this stage. The Minister, since taking over his portfolio, has involved himself in a dialogue and consultation for which he is to be congratulated. A commitment with regard to the Industrial Relations Bill was given in 1987. With that now recognised successful form of recovery The Programme for National Recovery, it was essential in 1987 that the Government and social partners work together in a responsible and consultative manner. It was this forum that brought about much needed change.

The Minister has also said that in entering these discussions he was aware that many unsuccessful attempts had been made in the past to secure agreement on fundamental changes in trade disputes and industrial relations law. It was his view that any further attempts to secure complete agreement were unlikely to lead anywhere. Given the respective positions and interests of employer and worker representatives, he went on to point out that he decided instead to identify a number of key areas which he considered needed attention and on this basis he developed a package of proposals. These addressed the major issues and were designed to improve the collective bargaining environment with a view to minimising conflicts and maximising co-operation.

The Bill provides for the setting up of a Labour Relations Commission for the procedures of the commission, for the funding, staffing and in particular the industrial relations officers and advisory services which is in line with the commission of inquiry on industrial relations published in 1981. They recommended that a new system of industrial relations should operate within a framework; labour relations coming to them will have responsibility for the wide range of functions to promote good industrial relations, to prevent dispute and encourage resolutions, including the provision of a conciliation and advisory service, and to draw up codes of practice. This new dimension will prove a valuable service and will definitely develop industrial co-operation between the employer and employee and trade union.

I welcome the setting up of the commission, the aim of which will be to ensure that conflicts in the industrial area are kept to a minimum.

It is difficult to envisage the damage done by disputes to industrial relations and existing industrial and commercial structures and it also reflects on our image in relation to foreign investment coming to this country. The Minister is to be congratulated on the steps he has taken to discourage the formation of new unions. I would also like to take this opportunity to congratulate the Irish Transport and General Workers' Union and the FWUI on their amalgamation.

I would like to refer to a point made by the Minister with regard to mergers. It is designed to encourage mergers between unions and to discourage the formation of new or breakaway unions. The Trade Union Act, 1975, permitted the introduction of a system of grants towards expenses incurred by unions in the successful merger. As the prospect of a merger attempt being unsuccessful and the associated expenses can deter smaller unions from attempting mergers the Minister is providing that unions which attempt to merger or which fail in the attempt may claim expenses relating to the two year period prior to the failure. This, no doubt, will help a trend towards union rationalisation. He has also referred — I welcome the proposal — to the change involving doubling of the membership required for a new union seeking to negotiate a licence. That membership will be increased from 500 to 1,000 members and a substantial increase in the level of the High Court deposit required by such union. I believe these are moves in the right direction. It certainly must give great confidence all round for the future of the trade union movement in their capacity to give the highest level of service.

It has been said, and I repeat, that a responsible, dedicated and united trade union movement is one of the greatest advantages that workers can have to ensure that their future wages, conditions and other aspects of their working lives are kept abreast of the general trends throughout Europe. This is very important legislation as it puts structures in place and updates the 1906 Act. It will also assist the further development of industrial peace. We have witnessed over the past three years the consensus and partnership of Government and the social partners and the compromises made. The commitment to reform and to put in place a framework for industrial relations is of the upmost national importance and will certainly help to continue the successful trend in our economy. I commend the Bill to the House.

Mr. Costello

I welcome the Minister to the House. I see him very often in the north inner city and it is nice to see him here in the Upper House from time to time.

In general terms I welcome the thrust of this legislation and indeed admire the scope of the measure. Its comprehensive nature is an indication that this is really the first substantial review of industrial relations since the 1906 Trade Disputes Act, that important legislation that predated this State and which has been the basis of our industrial relations since that time.

This is probably the most important legislation that has come before this House since I have been a member. It affects virtually all of us whether in terms of employer, employee or families thereof. It is like most legislation which comes before us, something of the curate's egg: it has its good parts and it has its bad parts. There are areas about which I have reservations and would like to see amended and there are areas I would wholeheartedly support. I am concerned about the restrictions imposed on picketing, both on primary and secondary picketing, and consider the restrictions there are not fully understanding of the implications, particularly in the area of secondary picketing, and the harm and the damage it could cause. At the same time, I appreciate the Minister's concern to deal with an area which needs delicate treatment.

I am concerned about secret ballots. This is very much at the heart of the legislation. The Minister would see it as an attempt to ensure that there would be a representative balloting of members prior to strike action but because the provisions are so extensive it could cause problems in terms of wildcat strikes and it may very well be counterproductive. I am concerned about the statement "immunities from prosecution" which the legislation gives rather than giving a straight "right to strike" which is the position I would uphold.

Senator O'Toole referred to the definition of "workers" and I am concerned about that also. What exactly is meant by that, who is included and who is excluded? In section 8 in relation to certain arms of the security forces, the Garda and the Army are excluded but not the prison staff. We had the reverse in the legislation dealing with abolition of the death penalty where on that occasion it was the Army who were excluded. In my own sector, that is education, I would like the Minister to deal with the matter of the public sector, the Civil Service and specifically teachers who are excluded from the terms of that section of the Bill.

I welcome the movement towards rationalisation. I know the Minister is extremely interested in this area. I wholeheartedly support rationalisation of the trade unions. It is particularly pertinent at present because my own union, the Association of Secondary Teachers in Ireland, is involved in moves towards establishing a council of teacher unions and rationalisation of the three teacher unions and, hopefully, going further to the other teacher union not immediately involved, the Irish Federation of University Teachers.

I would like the Minister to elaborate on the fact that if an attempted amalgamation is unsuccessful expenses can be obtained for a two year period. I would have preferred a more positive statement and encouragement in relation to mergers. I would like clarification on that because it is a very short period of time. Perhaps an amendment could be introduced that would extend it further because, in my case, if there is a merger it will take place over an extended period.

I welcome the Labour Relations Commission. It is an important body and it is a comprehensive approach to deal with industrial relations in terms of research, review and monitoring a situation to try to prevent industrial relations degenerating to the final stage of strike action. It will resolve problems at an earlier stage and will give proper status to the Labour Court. I also welcome the attempt to remedy the abuse of ex parte injunctions by employers which I believe have been increasingly abused in recent years. It is a useful section and I hope it will be effective. I am delighted to see those provisions.

I welcome the code of practice. It is a good idea that guidelines are given so that there are clear processes and procedures to be followed, as long as they are voluntary guidelines. I am not too happy with the idea that they can be used in evidence against people later on down the line if complaints are brought forward. I would be worried about that. The idea is a very good one as long as it is a case of voluntary guidelines and as long as it is guidelines rather than an imposition.

The Minister said that this legislation arose out of the Programme for National Recovery and his attempt to deal with collective agreements and the necessity to have a more streamlined approach to the matter. It is not quite correct to say that because if one looks at the background major elements of these provisions were already recommended in a committee set up in 1978 by the Government to inquire into industrial relations. That committee reported in 1981. Unfortunately the Irish Congress of Trade Unions withdrew from that committee and, therefore, it was somewhat hamstrung and the absence of the Congress had an effect on the recommendations made.

The committee reported in its recommendations that there would be a greater role for law and for legal mechanisms in the resolution of disputes. That, of course, was not feasible but some of the major recommendations have, to my mind, become the basis of this legislation. For example, it was recommended that the traditional immunity for trades disputes under the 1906 Act would be lost unless secret ballots and proper concilation procedures were followed. The provisions that are heart of this legislation have been unearthed from the 1981 report.

It was recommended by the committee in 1981 that the Trades Disputes Act, 1906 be repealed and that it be restated in other legislation with certain restrictions. Effectively that is what we have here. It sought to retain the legal immunities for industrial action instead of making a positive statement of strike action which would be the entitlement of every citizen in a trade dispute. I am unhappy the Minister has gone down this road and has refused the recognise the right to strike. In this respect we are lagging behind the European Community and EC law where the right to strike is expressly stated. It is expressly stated in the European Social Charter which was promulgated in 1989. I will read from the Community Charter of the Fundamental Social Rights of Workers. On page 16, Article 13 states:

The right to resort to collective action in the event of a conflict of interests shall include the right to strike, subject to the obligations arising under national regulations and collective agreements.

In order to facilitate the settlement of industrial disputes, the establishment and utilisation at the appropriate levels of conciliation, mediation and arbitration procedures should be encouraged in accordance with national practice.

In that there is a suggested code of practice and there is the express statement that the right to strike should be granted.

Mr. McKenna

No one is disputing the right to strike.

Mr. Costello

What we are talking about is whether you are going to grant legal immunity in the context of industrial action or whether you are going to give a positive statement on the right to strike. We do not have the positive side we have the negative side. That is the difference between the European Community and ourselves.

Mr. B. Ahern

Why not, Senator?

Mr. Costello

That is the point I am putting to the Minister.

Mr. B. Ahern

It is because the Congress of Trade Unions, including the union of which the Senator is president, do not wish it to be that way.

Mr. Costello

——do not wish to have a positive statement on the right to strike?

Mr. B. Ahern

That is correct and they have argued strongly against it for the last five years. That is why it is not in the legislation.

Mr. Costello

I stand corrected. I would have thought that because it was in the Charter on Social Rights of the European Commission that the Congress of Trade Unions was in favour of it.

Mr. B. Ahern

It is a long argument but the Congress of Trade Unions would rather it this way.

Mr. Costello

Perhaps in the Minister's reply he might refer to that and give us some of the arguments Congress used. I would appreciate that.

In relation to some of the provisions in the Bill, section 10 is a restatement of the law on conspiracy. Section 10 (1) is a copy of section 3 of the 1875 Act relating to trade disputes. It provides that an agreement between two or more persons to do an act which is lawful in itself in furtherance of a trade dispute shall not be a criminal conspiracy. This is nonsense. The law on criminal conspiracy is very vague and open to abuse, as recent cases have demonstrated. It needs to be overhauled and probably repealed, not tinkered with. More seriously, the protection from conspiracy is only available where the action is taken "in contemplation or furtherance of a trade dispute" as defined in the Bill. Therefore, the Bill is saying that an agreement to do a lawful act but not in relation to a trade dispute could still in certain circumstances amount to a criminal conspiracy. This is badly thought out and the Minister might again look at that section.

Section 11 which refers to protection for peaceful picketing is very important and is a restatement of section 2 of the Trades Dispute Act, 1906, as the 1981 committee recommended. The right to picket is confined to trade disputes as defined by the Act only. The right to picket is lost if the procedures are not followed and if there is no secret ballot or conciliation. Section 9 deals with all that. That is a fundamentally wrong principle because there is a constitutional right involved and it is available to everybody. I do not think one can take away from that right simply because it is not part of a Trades Dispute Act or because no ballot has taken place or no procedures have been followed. I refer the Minister to the textbook relating to picketing, Irish Trade Union Law by Tony Kerr and Gerry Whyte, on page 284, which states:

The 1937 Constitution expressly guarantees liberty for the exercise of the right of citizens to assemble peacefully and without arms. Indeed since picketing is primarily a form of communication, the ability to picket could also be viewed as falling within Article 40.6.1 which guarantees liberty for the exercise of the right of citizens to express freely their convictions and opinions.

In his opening address, the Minister stated that this legislation would give a clear presumption of constitutionality. I wonder if the Minister would refer to that in his reply and state whether there is the possibility of a challenge in relation to the right to picket in this section. It seems that it is a constitutional right that cannot be taken away by the provisions of a Bill of this nature.

With regard to secondary picketing, which is dealt with in the same section, I would have some problems. I know from looking at the Bill as initiated and the Bill as passed by Dáil Éireann, that there was an amendment to that section, but there is still a problem there. On the one hand, there is the question of the employer colluding with another employer, firm or business to break a strike; that is not uncommon, that takes place; but the onus is shifted on to the employee to prove that an employer had directly assisted their employer in the manner that would prevent the strike from continuing or would interfere with employment. In the past there have been very many instances of a trade dispute being broken by collusion between employers and here we have the Minister stating that the employees in question must believe that an employer has directly assisted their employer. How does one actually prove that? It is proved only by the employee in question. I know there can be a problem with secondary picketing, but I am not sure if this in itself will solve the problem. It brings it down to a matter for the courts. It makes it very difficult to deal with and will cause all sorts of frustrations and problems. I would like to hear the Minister's views on this matter.

As regards the possible dismissal of employees for taking industrial action, there is need for protection here. This is something for which there is not sufficient protection in the Bill. The Bill should provide that where an employee is involved in an official industrial action he cannot in any circumstances be dismissed. I am not satisfied that the Unfair Dismissals Acts sufficiently cover the matter. There should be specific provision in this legislation to cover that.

The heart of the Bill is section 14 dealing with the secret ballot. I have some problems with this. Subsection (2) states:

The rules of every trade union shall contain a provision that—

(a) the union shall not organise, participate in, sanction or support a strike or other industrial action without a secret ballot, entitlement to vote in which shall be accorded equally to all members whom it is reasonable at the time of the ballot for the union concerned to believe will be called upon to engage in the strike or other industrial action;

That is probably the strongest and most severe statement in the Bill and places a major obligation on the trade union movement in terms of its operation. It includes a provision which is more in line with some of the developments that have taken place in Britain than in this country in the recent past.

Mr. McKenna

What is wrong with it?

Mr. Costello

Secret ballots are desirable. Most trades unions have secret ballots as part of their procedures. That is normal. It is normal in my trade union. It is normal in most of the trades unions I know of but the fatal flaw in this is that it will require a secret ballot for all industrial disputes, no matter how trivial.

Mr. B. Ahern

As the Senator knows you cannot define "minor" and "major" when it comes to industrial relations.

Mr. Costello

Very recently my union was engaged in an industrial dispute in relation to a post of responsibility. We are a very reasonable union. We do not put a picket on a school immediately. We follow the correct procedures and the code of conduct which we have ourselves. We asked our members to withdraw their services in relation to that post because of the dispute. That was done as a token gesture. We would not regard that as a major action because the schools kept working normally but the specific posts which were the subject of the dispute were not manned by our members. We did not need to escalate the action because that carried the day. The management saw the light, so to speak. If that had not happened we would have escalated the dispute and this had been decided by the delegate conference of 400 members not by a full secret ballot, by withdrawing voluntary activities in the schools. Voluntary activities are activities we perform, as trade union members, on a voluntary basis because otherwise the schools would scarcely be able to operate.

Do I interpret from this legislation that the withdrawal of voluntary activity, which I am not obliged to do contractually as it does not form part of my contract with my management, is industrial action which necessitates having a secret ballot of all the members of my union? This is voluntary labour which they are not obliged to do in the first place. The norm in industrial disputes is that it takes place at shopfloor level and then the matter may or may not escalate, but if you demand that the entire workforce, which may be thousands or tens of thousands strong, has to embark on a secret ballot in the first instance then you are creating a recipe for chaos and frustration and for all sorts of wildcat industrial action. I would be delighted to hear the Minister's response to that section.

As regards the timescale, it is very difficult to conduct a secret ballot on any sort of national basis without allowing two weeks in which to have ballot papers printed and circulated, to hold branch meetings or have postal ballots depending on what form of action or procedures a union follows. Then the result has to be made to known to members. I share the reservations of Senator O'Toole about making known to members the actual percentage response. It is showing one's hand and the Minister could very usefully amend that section because it is really too much to say in section 14 (2) (f) that the number of votes in favour of the proposal and the number of votes against the proposal will be made known to all the members. Obviously if it is made known to all the members, it is made known to the people you are negotiating with so they will know precisely the strength or weakness of your hand. That is a real problem for the trade union movement. I would like to see the Minister accepting an amendment to delete these two points in paragraph (f).

Mr. B. Ahern

In case the Senator misunderstands, the union official would only make the results known to his own members, not to management. The logic behind it is very important. The only person who can take an action against the behaviour of the union is a member of that union. The employers side wanted me to allow management to take a case against a union for his misbehaviour. If a member is the only one allowed to take an action he has to know the result otherwise you are taking away his constitutional right. That is the reason for it.

Mr. Costello

I appreciate the point and I think it is a valid legal one.

Mr. B. Ahern

It is a fundamental right, not a legal point.

Mr. Costello

What is in the legislation is the number of votes, it is not the result. If it was the result of the ballot that would be a horse of a different colour. If the Minister could substitute in that section "the result of the ballot" as distinct from the number of votes cast one way or the other, it would be a big improvement from a negotiating point of view. My union would be very pleased with that. It would be fair because if the actual numbers are given to every member, it means in a union of 10,000, 20,000, 30,000 members it will be public information and the management will be quite aware of it.

Mr. McKenna

Would every member not be entitled to know the result?

Mr. Costello

Yes, on the result of the ballot, but the precise numbers and the number of spoiled votes would not be a fundamental entitlement. The result of the ballot is a fundamental entitlement and I accept that. I urge the Minister to have a second look at that paragraph.

As regards the timescale, I was saying that it would take about two weeks to organise a secret ballot on a national basis. It would take most of another week to inform the members of the result and then we would have to notify the employer. Then the employer could go to court and get a court hearing which could take another week. We are talking about a month. The timescale is extraordinarily long compared with the existing situation. No immediate action can be taken where an employer is at fault and I can see our members being frustrated. I can see it being costly and the delay creating many problems that may not have been envisaged by the Minister in the legislation.

Another very important feature which I referred to earlier is the Labour Relations Commission. I will not dwell on it unduly. Most of the things I have to say about it are favourable. I welcome it and the new status it intends to give to the Labour Court. It is a comprehensive approach to labour relations as is the code of conduct. I hope it is not used as evidence against an employee but rather as a guideline.

There is one other area to which I would draw the Minister's attention and that is what I would regard as the scandal of low pay. I know he is very concerned about it also. The Minister apparently has great faith in the Joint Labour Committee as a system of ensuring fair pay for non-unionised sectors. The Bill proposes various minor reforms in the Joint Labour Committee system but the Minister shies away from the essential area of reform. The only way, to my mind, in which the question of low pay can be addressed is through the provision of a statutory minimum wage. That is the way to go about this matter but it has not been referred to. A statutory minimum wage is commonplace in EC countries and in other western countries and the EC charter is strong on it as well. Article 5, states that "all employment shall be fairly remunerated". The only way to ensure fair remuneration is to ensure that everybody has a right to a statutory minimum wage.

Finally, it is worth mentioning, in relation to industrial action in the public service, that distinctions are made. I would like the Minister to address why the Garda and the Army are specifically excluded from the definiton of "worker" in section 8. They are not so excluded in other countries in Europe and I do not see why there should be a specific exclusion here. As I referred to earlier, the Defence Forces were excluded in other legislation. If there are three arms of the Security Forces why should a distinction be made for one and not the other? I would like the Minister to explain the distinction and to address the whole area of the Civil Service and the public service and why my union members are excluded in the context of section 23.

I welcome this legislation. I have outlined some serious reservations in relation to secret ballots, secondary picketing and the definition of workers. There are many areas that I am pleased with and I congratulate the Minister on putting together a very comprehensive Bill. It is the first comprehensive legislation that has been introduced in the industrial relations sector since before the foundation of the State and the Minister is to be congratulated on doing so. I wish him well in the future and hope he will accept one or two of the reasonable amendments that will be introduced on the next section.

Éamon Ó Cuív

I welcome the Minister and the Bill which is timely and comprehensive. Obviously, a lot of the debate has centered around industrial disputes but we must accept that industrial disputes are a last resort in industrial relations, and for most employees and employers they are a rare occurrence. The need for continuous good industrial relations in all sectors of employment is important. As somebody who has been a manager and responsible for industrial relations in a concern for a long time, I believe that the concept of unionisation is good. The concept of working through procedures is very important. It is an aid to management as well as to the protection of the rights of workers because where there are proper structures and proper procedures, in normal circumstances there should be no need for industrial action.

It is important for the good running of industry and commerce that workers recognise that they must operate through given structures. I welcome in the Bill, for example, an exception being made of disputes between worker and worker. In all my experience with trade unions I have found them reasonable in accepting that there are times when management, in the interests of the common good, have to take steps against employees that are not popular. However, I see that as being the exception rather than the rule.

Getting down to the specific provisions of the Bill, the steps being taken to reform the law as it applies to trade disputes and, particularly, to introduce the concept of secret ballots, are to be welcomed. It is a serious step to enter into an industrial dispute; it is more serious still both for employer and employee to take the decision to go on strike. Many workers, in effect, would find that by going on strike they would be jeopardising their employment because it might not be able to withstand the economic effects of a strike. Therefore, it is very important to ensure that before an industrial dispute is entered into, all possible means of negotiation have been exhausted, that proper procedures have been followed and a majority of the membership wish to proceed with such a step.

Secondly, we should welcome facilitating the further rationalisation of the trade union movement. How often in the past have we seen problems between unions within the same employment being the cause of industrial relation problems? If one considers the concept of a union being beyond a purely financial bargaining counter and an instrument of industrial disputes, and looks at it in its broadest concept, it is important that our unions are strong enough to fulfil this function.

Finally, there is provision for setting up the Labour Relations Commission. As has been pointed out, it is not good that the Labour Court should become a court of first appeal rather than a court of final appeal. It is important that there are mechanisms by which parties can sit down together and settle disputes and that if they fail at that level they have the Labour Court to fall back on.

It is also important that the expediency of appealing to the Minister — I congratulate the Minister on his fine work since he became Minister for Labour — should only be resorted to on very rare occasions because the effectiveness of such a step is eroded by over-use. The idea of drawing a Minister into many disputes does not serve either the Minister or industrial relations in general well.

The functions of the commission and the provision of an advisory service are important. From my experience in industrial relations, most industrial disputes tend to arise from a breakdown in human communications, often from the neglect of small matters accumulated over time, where there are not methods to deal expeditiously with complaints, be they major or minor.

One of the important areas for development is the whole question of education, of creating structures within industries, factories and the workplace where small problems can be sorted out effectively. The rights of workers to good working conditions, to flexibility within the overall budgetary constraints an employer would have and to information as to what is proposed, costs nothing to the employer but often saves time and money in the long run. I have used to good effect within the industry I manage what I would call an expanded safety committee procedure to ensure that matters of safety, conditions and information up and down the line can be transmitted from worker to manager and from manager to worker in a regular manner so that possible areas of conflict are headed off before they become matters of serious conflict. In this way not only does it not cost money but, as I have said, in the long term money and time are saved. A happy workforce normally is an effective workforce, a safe workforce is an effective workforce. A workforce who feel they can participate in the place they work, that they have a role in making suggestions about improvements, and so on, normally do not wind up in an industrial dispute with their employers.

As I said at the outset, this Bill is welcomed. It goes far beyond laying down simple rules for the resolution of disputes, although that obviously is a very important part of this law. It is important that the work that has been done in the past few years in developing this economy is not now lost in an outbreak of industrial disputes which would threaten to put us back to where we were a few years ago. Facing into 1992, all people, employers, managers and employees — at times we tend to forget that most managers are also employees — will have to work together to ensure that through industrial harmony we will be able to compete in the new Europe we will face after 1992.

It is with deep concern that, as a Senator, I have watched the escalation of various disputes, among them the Waterford Glass dispute and the dispute in the Irish Press office. I hope that good industrial relations will prevail. It would not be proper for me to make any comment on the disputes except to hope that they are not the precursor of a series of such disputes that might and could, if they continue, lead to serious job losses. Everybody involved in employment, employer and employee, has an obligation to ensure that we do not add to the dole queue, that employment is maintained through good industrial relations and that we do not allow, through obduracy on either side, a situation to arise where good and viable employment is lost.

Mar a dúirt mé, ba mhaith liom anfháilte a chur roimh an mBille seo. Creidim, ach an cur chuige agus an deathoil cheart a bheith ann idir oibritheoirí, bainistíocht agus fostóirí, gur féidir bunáite na stailceanna a bhíonn ar bun a sheachaint. Tá dualgas mór ar fhostóirí bheith oscailte le eolas maidir le brabach agus maidir le riocht a gcuid gnothaí lena gcuid fostaithe. Tá dualgas ar fhostaithe tuiscint nach tobar gan deireadh é aon fhostóir agus go bhfuil teora leis an méid airgid is féidir a íoc; agus tá sé tábhachtach go dtuigfeadh an dá thaobh fadhbanna a chéile, go mbeidís oscailte lena chéile, go gcloífí leis na rialacha atá leagtha síos sa mBille seo agus go ndéanfaí cinnte, in ionad fostaíocht a bheith ag maolú, go leanfadh fostaíocht ag méadú.

Mr. Kennedy

In considering the Industrial Relations Bill, 1990 it is interesting to trace the development of the law in this area. The Conspiracy and Protection of Property Act, 1875 virtually excluded common law criminal liability in the field of trade disputes. The action of employers and of the courts was to turn to the law of tort which provided remedies against conduct deliberately aimed at causing financial loss. The ability of employees to take effective industrial action was thus placed in jeopardy by the threat, not of criminal prosecution, but by awards of considerable damages and by orders for injunctions. Tortious liability for conspiracy replaced criminal liability and this process culminated in the decision of Quinn v. Leathem in 1901. In that case, the House of Lords held that trade union officials who threatened an employer with a strike if he did not dismiss non-union members and who persuaded customers not to deal with him, were liable for the tort of conspiracy to injury.

An equally significant development was the decision of the House of Lords in the same year in Taff-Vale Railway Company v. the Amalgamated Society of Railway Servants in 1901, that a trade union registered under the Trade Union Act, 1871 was a legal entity capable of suing and being sued under its registered name for the tortious acts of its members and officials. The union in that case found itself liable for £23,000 in damages and for a substantial sum in respect of costs as well. The unions campaigned vigorously for changes in the law but, as Wedderburn has convincingly argued, they made not ideological demands but practical demands.

Parliament proceeded to consider the conferring of immunities on trade unions in certain circumstances, that is to say, recognising the inherent unlawfulness of what they were doing but exempting them specifically from any penalty that might follow. This was, of course, a very basic change in the whole approach to the law and it manifested itself in that very important Trade Disputes Act, 1906. In view of its vast influence on trade union law, both in philosophical terms and in practice, the 1906 Act is remarkably brief, consisting of a mere five sections and capable of being written on a single sheet of paper. It sets out to remedy directly and explicitly the difficulties which had arisen by reason of the court's interpretation of the 1871 Act.

After a remarkable parliamentary career during which a number of important amendments were made, the 1906 Act was enacted on 20 December 1906. Kidner has described the 1906 Act as a legislative coup of the greatest proportions for the trade union movement. The immunities conferred by sections 1, 2 and 3 of the 1906 Act in respect of conspiracy, picketing and inducement of breach of contract, are restricted to persons acting in contemplation or furtherance of a trade dispute. It is, of course, in the interpretation of this formula which has been dubbed "the golden formula" by Wedderburn, that the boundaries of lawful industrial action are defined.

Section 1 of that Act provides that an act done in pursuance of an agreement or combination by two or more persons, if done in contemplation or furtherance of a trade dispute, shall not be actionable unless the act, if done without such agreement or combination, would be actionable. Section 2(1) provides that it shall be lawful for one or more persons acting on their own behalf or on behalf of a trade union, in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides, or works or carries on business, or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working.

Section 3 of that Act provides that an act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business or employment of some other person. It will be noticed that the activities mentioned in sections 1 and 3 are not made lawful but are rendered immune from legal proceedings.

In the case of picketing, however, the 1906 Act actually legitimated this activity, provided it was peaceful. The Judiciary, therefore, plays a central role in determining the legality of industrial action and the Irish courts have always taken the view that the 1906 Act, since it abrogates and curtails common law rights, ought to be construed with reasonable strictness and given no wider scope than is clearly marked out in the Act. Moreover, the 1906 Act has been described by Mr. Justice Parke in Goulding Chemicals v. Bolger of 1977 as a child of political expediency, hastily conceived and prematurely delivered with many inbred imperfections. In the same case Mr. Justice Kenny said that the 1906 Act was introduced to redeem an election pledge of the Liberal Party, that there were many indications it was hurriedly drafted and that its wordings did not receive adequate consideration.

Section 4 of the 1906 Act provided that action against a trade union in respect of any tortious acts alleged to have been committed by or on behalf of a trade union shall not be entertained by any court. The intention here, of course, was to protect the funds of trade unions in the aftermath of the Taff-Vale case of 1901. While section 4 originally provided immunity to registered and unregistered trade unions alike, whether of workers or employees, it now applies, following the enactment of the Trade Union Act, 1941, only to registered trade unions holding a negotiating licence and to members and officials sued in a representative capacity on behalf of such a union.

Section 5 (3) of the 1906 Act, on the other hand, provided that the expression "trade dispute" means any dispute between employers and workmen or between workmen and workmen which is connected with employment or non-employment or the terms of employment or the conditions of labour of any person. In order for the golden formula to apply the following criteria must be met: (1) there must be a dispute, actual or imminent; (2) the dispute must be between the proper parties; (3) the dispute must be connected with one or more of a number of specific matters, and (4) the action must be taken in contemplation or furtherance of a trade dispute.

In Ireland the restricted application of the 1906 Act to persons employed in trade or business has given rise indeed to much debate. This phrase was interpreted by the courts in a manner which excluded public servants and all those not involved in commercial or industrial activities. After much contention the matter was resolved by the Trade Dispute (Amendment) Act, 1982, and the traditional immunities were extended to all employees other than members of the Garda Síochána and the Defence Forces.

Talbot (Ireland) v. Merrigan of 1981 is a good example of how narrowly the 1906 Act has been interpreted by the courts. In that case the Irish Congress of Trade Unions was restrained by an interlocutory injunction which was granted by the Supreme Court in this country from imposing an embargo on the products of the plaintiff company. This decision of the Supreme Court that trade unions may not bring pressure to bear upon an employer means that trade unions are deprived of a considerable element of their economic strength. That decision is one of the most important decisions in the field of labour law in recent years and yet, as we know, there is no record of the court's reasoning and, indeed, no transcript of the court's judgment. In that case the plaintiffs were in the process of scaling down their Irish operations and they had reduced the number of persons employed by the end of 1980 from 500 to 122. In 1981 the plaintiffs announced that a further 86 were to be laid off and ministerial permission was granted. However, a number of employees occupied the plaintiffs' premises. An injunction was used to restrain the continuance of the sit in and picketing commenced.

The trade union representing the employees, the Amalgamated Transport and General Workers' Union, decided to increase the pressure on the plaintiffs by seeking the support of other trade unions and they announced an embargo on the plaintiffs' products. The decision to place the embargo was endorsed by the Irish Congress of Trade Unions. All members of trade unions affiliated to the Congress were asked not to permit the importation of Talbot cars and other components, not to handle them within this country and not to permit services to be carried out in connection with the plaintiffs' activities. The plaintiffs successfully applied for an injunction restraining both Matt Merrigan, the general secretary of the Amalgamated Transport and General Workers' Union and the Irish Congress of Trade Unions from imposing the embargo. The Supreme Court upheld the High Court decision to grant the injunction and the boycott, as we all know, was called off.

Mr. Justice Henchy is reported as saying that there were many matters to support the finding. The embargo was no empty request but an implemented direction which, in effect, procured the breach of many contracts between the company and third parties. Mr. Justice Kenny stated that the 1906 Act had no application to the case. Section 3 of the 1906 Act only provides immunity where the defendant, in contemplation or furtherance of a trade dispute, induced a breach of a contract of employment. The contracts that were broken in the Talbot case were commercial contracts. In the context of picketing the courts in this country and in the United Kingdom have put very strong emphasis on "peacefully". In the Brendan Dunne Limited v. Fitzpatrick 1977 case Mr. Justice Budd stated:

1. the method of picketing must be reasonable having regard to all the circumstances;

2. it would not be reasonable to place a picket consisting of 100 or so persons on a small suburban business premises with one or two of a staff; on the other hand, it might be quite reasonable to place several quite large pickets on a large factory with several entrances;

4. it is a matter of degree according to the circumstances; and

5. the number of pickets should bear reasonable relations to the nature of the premises and the number of persons with whom the dispute arises.

Mr. Justice Budd concluded in that case that 60 persons parading outside the plaintiffs' premises in Dawson Street in Dublin 2 was an unduly large picket and one calculated to frighten and overcome those picketed and members of the public wishing to do business with the company.

In another case, Ryan v. Cook, 1928 the plaintiff, Agnes Ryan carried on a retail dairy and creamery business in 20 shops in Dublin, including one in Henry Street. None of her assistants was a member of any trade union. The defendants, on behalf of a trade union, sought and obtained permission from the plaintiff to canvass her assistants to become members of their union. Letters were written by the union to her assistants inviting them to join the trade union and forms of application to join the union were then distributed. Notwithstanding their efforts, no member of the plaintiffs' staff joined the trade union. Four letters were then written by the trade union to the plaintiff asking her for an assurance that she would only employ trade union labour and would observe trade union conditions and stating that failure to give the required assurance would lead to the placing of a picket on the plaintiff's premises at Henry Street. No reply was made by the plaintiff to these letters and a picket was placed on her premises. Members of the picket carried posters inscribed as follows: “This firm refuses to employ trade union labour” etc.

The plaintiff never, of course, refused to employ trade union labour. She brought an action against the defendants claiming an injunction to restrain them from attending at her premises for the purpose of watching or picketing her premises, from disturbing her in the conduct of her business and from interfering with her employees and her customers. In that case, Mr. Justice Johnson held on the evidence that there was no trade dispute within the meaning of the Trade Disputes Act, 1906. Therefore, the 1906 Act afforded no protection for the defendant's acts. The conduct was therefore wrongful whether viewed from the point of view of conspiracy or nuisance and the plaintiff was entitled to the injunction claimed. The dissemination of falsehood, as was done by the defendants in this case, since the inscriptions on the banners were untrue, could not be described as a peaceful way of communicating information within the contemplation of section 2 of the 1906 Act.

In a similar case, Esplanade Pharmacy Ltd. v. Larkin in 1977, the Supreme Court held: (1) the action of the union was an attempt to enforce an agreement as to the trading hours for the particular premises involved; (2) this was a matter concerned with the employer's business rather than with the employees conditions; and (3) there was therefore no trade dispute in existence and the picket should again be restrained.

In a similar case, Tynan v. Balmer in 1966, an official strike concerning draftsmen was in progress at a factory. The defendant was the leader of the striking draftsmen and he was chairman of the negotiating committee. It was indeed a well-managed strike, entirely lacking in disturbance and bad temper and the strikers maintained friendly relations with the police. Pickets had been placed at all gates leading to the factory and two police constables who had been on duty outside the factory saw the defendant leading about 40 pickets moving in a circle at the main entrance and extending this circle into the public highway. The police constable requested the defendant to stop the pickets from circling in this manner. The defendant refused and was arrested. He was charged with wilfully obstructing a police constable in the course of his duty. The defendant sought to rely on section 2 (1) of the 1906 Act. The court, however, held that since part of the object of the pickets was to seal off the highway and cause vehicles approaching the premises to stop, their conduct was a nuisance at common law and, therefore, it was an unreasonable user of the highway. Section 2 of the 1906 Act did not render picketing a lawful user of the highway in all circumstances. The picketers' conduct could be the subject of interference by the police and again, accordingly, the defendant was guilty of the offence charged.

In another case, Hunt v. Broome in 1973, the defendant was on a strike picket during an industrial dispute. He stood holding a placard in front of a vehicle on a highway urging the driver not to work at a site nearby and preventing him from proceeding along the highway as he wished. The defendant was charged with obstructing the highway and again the House of Lords held in that case that the 1906 Act made lawful the attendance of pickets only for the purposes specified therein. The 1906 Act did not require the person whom it was sought to persuade to submit to any constraint or restriction on his or her right to personal freedom. The defendant had a statutory right to invite the driver to stop and listen to him so long as that was done in a reasonable manner. The defendant was not entitled to compel the driver to do so and, accordingly, he had committed the offence charged.

In the course of his judgment in that case, Lord Reid, laid down a number of points. There was no ground for implying any right to require the person whom it was sought to persuade to submit to any kind of constraint or restriction on his personal freedom. One is familiar with a person at the side of a road signalling to a person requesting him to stop. It is then for the driver to decide whether he will stop or not. That a picket is entitled to do. If the driver stops, the picket can talk to him, but only for so long as the driver is willing to listen. If a picket has a purpose beyond those set out in the section of the Act, then his presence becomes unlawful.

In many cases it would not be difficult to infer as a matter of fact that pickets who assemble in unreasonably large numbers do have the purpose of preventing free passage.

I think obviously, a Leas-Chathaoirligh, Senator Honan must be trying to prevent me from making my contribution here this evening.

Professor Conroy

We are fascinated by the Senator's contribution.

Mr. Kennedy

Section 2 of the 1906 Act merely commits persons to attend at or near and not in or on premises. Section 2 of the Act does not confer a licence on trade union officials to enter upon property for the purpose of addressing employees, even at the request of the employees. That was shown in the case of Larkin and the Belfast Harbour Commissioners in 1908. Neither are the employees protected. If they go beyond picketing and occupy or seize the whole or part of the premises, the occupation itself may be extremely peaceful and cause no actual damage but nevertheless it is a clear interference in the property rights of the employer, and indeed the property rights of others. It constitutes a trespass and may involve those concerned in civil and criminal liability. The occupation may also attract a criminal prosecution under the Prohibition of Forcible Entry and Occupation Act, 1971.

It is in the context, therefore, of the 1906 Act and indeed of the case law as developed by our courts and by the courts in the United Kingdom, that I think we can see the strengths and the weaknesses of this Industrial Relations Bill, 1990. The Long Title of the Bill describes it as an Act to make further and better provision for promoting harmonious relations between workers and employers in this country. That is something we all look forward to. The provisions of the Bill, as the Minister has indicated, range over a number of areas and can be roughly divided broadly between (1) trade union law, Part II, sections 8 to 22 and (2) industrial relations generally, Part III, sections 23 to 56.

Under the broad heading of trade union law, there are provisions first, to reform trade dispute law; second, to introduce pre-strike secret ballots; third, to restrict the use of injunctions in trade disputes and fourth, to facilitate the further rationalisation of the trade union movement.

Under the broad heading of industrial relations generally, there are provisions to establish a new industrial relations commission which will have responsibility for a comprehensive range of functions, including the provision of conciliation and advisory services and the drawing up of codes of practice. The approach in the area of trade disputes law is to repeal the Trade Disputes Act, 1906, and the Trade Disputes (Amendment) Act, 1982 and to reintroduce the main provisions of these Acts with appropriate amendments.

Section 11 of the Bill deals with peaceful picketing. Section 11 (1) amends section 2 (1) of the 1906 Act and confines the immunity to picketing at a place where their employer works or carries on business or where that is not practicable at the approaches to a place where their employer works or carries on business. Section 11 (2) provides that secondary picketing will be permissible only where workers have a reasonable belief both at the commencement of and throughout their continuance of attendance on a secondary picket that a secondary employer has acted in the way calculated to frustrate a strike or other industrial action by directly assisting the employer who is a party to the dispute.

Section 12 re-enacts section 3 of the 1906 Act with the addition of a provision in section 12 (b) to grant immunity to a person who threatens to induce a breach of a contract of employment and a threat by a person to break his own contract of employment. Although section 12 makes the inducement or threatened inducement of a breach of contract not an actionable behaviour, it does not deal with the situation that arose in the Talbot (Ireland) Limited case against Merrigan in 1981 in respect of breaches of commercial contracts. I would like to know whether the Minister has in mind any changes in the Bill to take into consideration breaches of commercial contracts.

Section 17 provides for the removal of the immunities from civil action under sections 10, 11 and 12 in respect of proceedings arising out of a strike or other industrial action in this regard contrary to the outcome of a secret ballot.

Section 19 provides if a secret ballot favours industrial action and a trade union gives at least one week's notice to the employer concerned, then the employer shall not apply to the court for an ex parte injunction and the court shall not grant any other injunction if the trade union establishes a fair case that it was acting in contemplation or furtherance of a trade dispute. There may be some doubts about the constitutionality of that section, and I am sure it is something the Minister has considered, but I would suggest again that it would be wise to get the advice of the Attorney General or the other appropriate law advisers that the Minister has at his disposal.

Section 19 (4) provides that the provisions of section 19 shall not apply in the case of unlawful entry or indeed of trespass or action likely to cause death or personal injury.

In conclusion, therefore, I hope this Bill is successful in promoting, as the long Title has indicated, harmonious industrial relations in this country.

Mr. Mullooly

I am very conscious of the time so I will be extremely brief. I welcome this Bill which provides for major reform of the law on industrial relations. I also welcome the fact that the main provisions of the Bill resulted from the comprehensive and detailed discussion and consultation which took place between the Minister for Labour, the Federation of Irish Employers and the Irish Congress of Trade Unions. I would like to compliment everybody who was involved in these discussions on the extent of the consensus which was obviously achieved.

A favourable industrial relations climate is essential if the kind of employment creation that we would all like to see is to be achieved. This legislation will contribute significantly to the achievement of such a climate. It is also important, as we move closer to the Single European Market, that we would have put in place the best possible framework for the conduct of industrial relations.

The Bill contains provisions to reform trade dispute law, to introduce pre-strike ballots, to restrict the use of injunctions in trade disputes and to facilitate the further rationalisation of the trade union movement. These are all areas of trade union law which needed updating and revision.

The new Labour Relations Commission which the Bill proposes to establish is also a welcome provision. I believe that this labour relations commission will have a key role to play in the maintenance of good industrial relations and in ensuring that minor disagreements are amicably settled before they can escalate or become major disputes.

Over the past three years this country has achieved a major economic recovery. The road to recovery was not an easy one. Many sacrifices were called for along the way. The co-operation which the Government received from the social partners, and especially from the Irish Congress of Trade Unions, was vital to the process of recovery. That co-operation is again evident from the level of agreement which was reached in relation to provisions of this Bill. The leadership of the Irish Congress of Trade Unions has once again demonstrated a level of maturity and responsibility and a degree of commitment to the well being of this nation that has to be commended.

This Bill is another triumph for the present Minister for Labour and I would like to join with the other speakers who have paid many tributes to him for the successes he has achieved in that office since he was first appointed. I join with previous speakers in welcoming this Bill.

Mr. Neville

I too would like to use the opportunity to welcome the Bill. The Irish industrial relation scene makes the time opportune. It is nice to recall that in 1989 the level of man days lost through industrial disputes was the lowest since 1922. This is a tribute to the parties to the industrial relations area, the employers the trade unions and the workers. The approach of these parties to the pay agreements has reduced the potential for conflict. The Government must encourage the parties, by their policies towards the industrial relations environment, to continue with a positive approach to national pay bargaining.

Since the beginning of the 1980s, up to 1988 there has been on average 40 strikes each year in pursuit of pay claims giving rise to a loss of about 190,000 man days per day. In 1988 due to the return of central bargaining on pay there were just six strikes resulting in the loss of 11,000 man days, less than 10 per cent of the total man days lost. While national pay bargaining has been positive in its approach to industrial relations, I would caution about national pay bargaining in the long term because it does reduce the role of the trade union official and indeed the role of management in the negotiations in the industrial relations area and can lead to conflict outside of the exact pay bargaining when the industrial relations personnel try to re-establish their position with their various constituents. While in the short-term central bargaining is productive it tends to lose its effect in the longer term.

Concern must be expressed about the deteriorating situation in the employment figures for last month. While the Industrial Relations Bill deals with the employed we must also concern ourselves with those who do not have the opportunity of employment, our emigrants and our unemployed at home. While we congratulate ourselves on the improved economic performance, the Government must seriously examine our failure to translate this into real jobs on the ground.

The increase in unemployment of 6,200 in June, bringing the number of unemployed to 221,800 despite the fact that almost 1,000 people per week emigrate, is in stark contrast to the optimistic reports which have been turned out over the past 12 months. I believe that the Government and the Minister — especially as it is a Government responsibility — should set up a task force to tackle the unemployment and emigration problem. I would like to highlight quickly three of the principal causes of unemployment. First, high income tax, PRSI and overheads make it too costly to put £1 in a worker's pocket; second, the overlay of social legislation makes the employment of labour unattractive; and third, the multitude of poverty traps which has grown from official policy. A person going off social welfare benefit and taking up employment should in all circumstances be better off. In this context I would ask the Minister and the Government to look at the creation of a new Department of Employment. This should merge the Department of Labour with the industrial development function of the Department of Industry and Commerce and the unemployment benefit section of the Department of Social Welfare to tackle our unemployment problem.

This Bill is being introduced at a time when the power balance between the employers and the unions is weighted towards the employer. This is due to the economic situation over the past ten years and to the factors which I have already outlined. There is an over-supply of labour for the available vacancies. Most employers have responded to this in a responsible manner and have not misused their power to the detriment of their employees. Many have rightly corrected their out of line production costs, which were a relic of the late sixties and early seventies when the reverse situation applied, when there was an under-supply of labour for the available positions. On too many occasions during that period the trades unions used their power to extract high wage increases which caused extreme problems for these organisations when economic circumstances changed.

Many good and formerly successful organisations went out of business because of their failure to readjust their costs when the economic environment changed. Management in such companies failed to head off the problem and did not have the necessary personnel management skills to negotiate a readjustment when times changed. Unfortunately too many organisations did not recognise the value of such skills and paid the price.

Regrettably, today there are a small number of employers who seize the opportunity to take advantage of the current employment situation by introducing draconian conditions of employment and very low wages. These employers give the majority of employers a bad name. They pride themselves on their strong, autocratic management system with no concern for the views or morale of their employees.

The current labour market, where people have little or no alternative employment facilitates this approach by these employers. They can, by such an approach, incur much lower production costs than their competitors and are in a position to undercut them in the marketplace. This, what I call "macho-management approach" is very shortsighted and is very dangerous. I would like to quote the case of a company involved in an industrial dispute which went on for several weeks. Following the dispute they wrote to their workers in the following fashion:

Following the termination of the recent industrial dispute it is very clear that 1. About 2/3 of our employees wish this company to continue in existence and to expand and prosper... 2. Unfortunately there is a smaller number making up most or all of the remaining 1/3, who by their vote and by the subsequent actions of most of them have demonstrated very clearly that they are not of the same mind. Those employees in group 2 above should be aware of their rights [and this took place where there were considerable changes of employment conditions] under the redundancy Act which allows them to legally claim redundancy if the new payment structures are not acceptable to them. They have 1 month from the commencement of the new structures to make such a claim which, unless the company contests it as unreasonable, must be complied with.

You may be assured that we will not contest such a claim as we are profoundly of the opinion that the interests of both the company and those in group 1 would be best served if the dissatisfied employees left the company sooner rather than later.

This typifies the approach to which I referred.

Economic trends will change and it would be hard to persuade employees of such organisations not to misuse their muscle power when the employment market changes and the power base between the unions and employers shifts towards labour. Such employers are making the same mistake in using their position as did the trade union movement in the late sixties and early seventies. I would like to take this opportunity to congratulate the majority of employers who take a totally different approach and who have progressive personnel policies. I especially wish to mention many of the multinationals who see spending in this area as an investment rather than a cost.

There have been many misrepresentations regarding the whole area of industrial relations. If one mentions that one works in this area one often gets the response from the general public as if one were engaged in activity akin to war. The truth is far different. War is the promotion of conflict in an extreme way; industrial relations is the containment and control of inter-personal and intergroup conflict in a positive way.

At this stage we should define industrial relations because nobody has defined it in this debate so far. Industrial relations is concerned with the systems, rules and procedures used by unions and employers to determine the reward for effort and other conditions of employment to protect the interests of the employed and their employees and to regulate the ways in which employers treat their employees. It includes the process of collective bargaining as well as formal procedural agreements. Industrial relations also includes the role of the parties involved in this system such as management, union officials, shop stewards and employees and the relationships between them. It can be regarded as a system of rules, jointly agreed by the representatives to the employment relations. This reference to joint agreement is important because the agreement between the parties makes for ready acceptance of the procedure rather than if they were imposed by a third party or the State. The Irish system of industrial relations is, therefore, essentially a voluntary one. The system was mainly influenced by the UK system which developed from the laissez-faire philosophy of the last century. This system encouraged individual bargaining at the workplace. The system broke down because of the unequal bargaining power where the employers had much more economic and social power than their workers. Workers, therefore, came together to redress the situation.

The Bill refers to the Trade Union Acts since 1871. This removed the illegality of unions. It meant that members of a trade union need not be in fear of prosecution in respect of criminal conspiracy.

Debate adjourned.