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Seanad Éireann debate -
Wednesday, 11 Jul 1990

Vol. 126 No. 1

Industrial Relations Bill, 1989: Committee and Final Stages.

Before we commence I wish to inform the House that amendments Nos. 18, 23, 24 and 25 are out of order as they involve a potential charge on the Revenue. Two lists of amendments have been circulated, one main list and a list of additional amendments. I have also arranged to have a list of the groupings of the amendments circulated for the information of Members.

Sections 1 to 7, inclusive, agreed to.
SECTION 8.

I move amendment No. 1:

In page 7, lines 10 and 11, to delete "but does not include a member of the Defence Forces or of the Garda Síochána."

The intent of this amendment is to include the Defence Forces and the Garda Síochána in the definition of "worker". I feel it is inappropriate to have those sectors of the Defence Forces excluded from legislation which gives trade union rights. I have always considered that there were three central sectors of the security force — the Garda, the Army and the prison officers — involved in the overall security of the country and of the institutions of State.

In this legislation we have tightened up very considerably the procedures for industrial action, not just strike action but all types of industrial action. Indeed, one of the bones of contention has been that the interpretation and the extensiveness of the terms of industrial action are virtually all encompassing in relation to any trade dispute. Developments have taken place in other European countries, most notably the Scandinavian countries, where virtually all rights that are granted to normal trade union workers are extended to the security forces as well. The Army have rights in relation to industrial action. Indeed, the prison officers in our own country have full rights in the context of industrial action. As I said in the context of tightening up procedures in relation to when, how and where industrial action can take place, and in the context of the new Industrial Relations Commission where a new procedure in terms of review and monitoring is being introduced, and in terms of prevention of industrial action, a new code of practice is to be introduced. There are very tight procedures now to be followed. At this time we should look again at these workers and they are workers in the normal dictionary term of the word but not for the purposes of this legislation dealing with trade union law and trade disputes. I would ask the Minister to consider accepting this amendment and to extend the definition of "worker" to the Garda Síochána and to the Defence Forces.

On this issue which strikes very close to the heart of organised labour, there has been a view since the foundation of the State that the Garda or the members of the Defence Forces were in some sense different from other workers. Of course, they are in as much as they are dealing with the security and defence of the State — that makes a lot of sense — but time has moved on. We are part of Europe. In my experience in many countries of Europe, the Defence Forces are entitled to be members and affiliated and associated with the trade union centre in their country.

Recently, I attended a seminar on drug abuse in Strasbourg where there were representatives from different trade union movements. Two representatives from the German area were policemen. I do not see any reason for excluding the Defence Forces and the Garda from the functions of this particular Bill, although I know there was a need for it at some stage.

What we have in this section in the definition of "worker" which is a reflection of another time and another age. It is no longer appropriate. It is no longer relevant. Of course, I believe that the Garda and the Defence Forces would never have quite the same levels of freedom, because of the sensitive nature of their work, as other workers and they would agree with that view.

I have a special interest in the Garda Representative Association. My father was a founder member and still works with the GRA. For that reason, I see them go through precisely the same type of development, face the same problems, address the same issues and represent their workers and members in precisely the same way as I would do for teachers, or other trade unionists might do for other groups. This exclusive definition of "worker" is no longer appropriate in the last decade of the century. I support the amendment.

The definition that is used in this Act is that effected by the passage of the Trade Dispute (Amendment) Act, 1982. It covers all persons employed with the exception of the Garda Síochána and members of the Defence Forces. It is a factor of industrial relations in this country. There are two issues involved; there is the issue of representation and how they are represented in so far as they are covered on issues of pay and conditions and other matters. They have that freedom. They are covered for that, but the definition in the section we are talking about here is the definition used in relation to industrial action — which would entitle people to take industrial action. Neither the Army nor the Garda are arguing to be excluded from that. They do not see it as part of their remit. If they see it in those terms they have not done so in the time this Bill was around.

I will refer now to the European scene. The provisions of the Council of Europe — the European Social Charter, which is a major charter for all workers in the European context and is a modern charter — specifically excludes the Garda and the Army. I assure Senator O'Toole that we are in no way behind the European regulations. We are right up to date. For that reason, I would not include the Garda or the Army in this definition. I would not like it to be thought that this amendment, which did not arise in the other House but, more importantly, in the debate, is not an issue. The Garda and the Army are anxious to have their representative bodies. The Garda have had a representative body for many years. As Senator O'Toole, said his father was involved in that. They have a very successful organisation and the Army now have just formed a representative body. What is being sought here is something that was not envisaged and I have to reject the amendment.

Could the Minister address the question of why the prison officers have been granted the status of workers? Certainly, they are not specifically excluded, as are the other two sectors. How does the Minister differentiate between that section and the Defence Forces and the Garda? While it may be true that they have not specifically sought these rights in relation to the industrial action, the Minister has not expressed an opinion as the desirability of such a course. Should we, at this point, consider the developments that have taken place here or elsewhere? While the Council of Europe may not specifically include any reference, or may exclude such reference in relation to member states, there are other states in Europe which have given these rights to their Defence Forces.

I was particularly perturbed when we were discussing the new defence legislation in relation to the setting up of a representative body that there was a specific reference that we should not countenance members of the Defence Forces to get together in a collective group in the context of trade union action. If I remember correctly, the word "conspiracy" was used in that Bill if someone was responsible for persuading another person to become part of a trade union. I am not happy with our position. On the one side we have legislation which has recently been enacted which was antitrade union. I would like to see the Minister for Labour explaining the position of the Department and giving any good reasons — other than it has been the practice that they have not been included — why we should not change the situation at this point.

Just to make it clear, there is a distinction that I have not made. The Garda and the Army are seen as of particular status in the security of the State. They are involved in all the day-to-day external and internal dealings with subversives on a nationwide basis. Prison officers are in our prisons, which is important. There has been a distinction there for a long time. The Senator would know that I am as supportive as possible and was involved at certain levels in the discussions with the Army in getting the recent structures. I have always been supportive of the structures which the Garda have, but to countenance strikes by the key elements of our security forces would be unthinkable.

Because of their constitutional position, in my personal view, in the view of my Department and in the Government view, Army personnel could not be included in the definition of "worker" in the context of industrial action. It would be very bad legislation. They have a special and important position as regards the security of the State and it is a very respected position. I could quote the Constitution on that point. In my view, even if it was not a matter of custom and practice also, it would be inappropriate to include them in the context of strike action.

Amendment declared lost.

Amendments Nos. 2 and 3 are alternatives and Nos. 9 to 15——

Before leaving that amendment on the definition of "worker", I would like to put a question to the Minister. Is it appropriate to do so now?

It would not be appropriate now but you can raise it on the section.

Thank you.

Amendments Nos. 2 and 3 are alternatives, and amendments Nos. 9 to 15, inclusive, are consequential, and may be discussed together.

I move amendment No. 2:

In page 7, to delete lines 12 to 18 and substitute the following:

"industrial action' means any action taken by any number or body of workers, acting in combination or under a common understanding, which involves a partial refusal to work or a refusal to carry out work or provide services normally carried out, or provided, within the terms of their contract of employment, but does not include a refusal to carry out work or provide services which, if carried out or provided, would frustrate a strike or industrial action engaged in by others;".

The whole area of industrial action and what exactly is meant by industrial action is central to this legislation. The purpose of this amendment is to try to tease out more clearly what we are concerned with in the context of industrial action — what is meant, what is covered by it and what is not covered by it. That is the purpose of the previous section. It does not include a refusal to carry out work or provide services which, if carried out or provided, would frustrate a strike or industrial action engaged in by others.

It will be a major issue in the trade union movement and legally as to how to define industrial action — what precisely is covered by it, what is the extent of the parameters etc. It is important that in the legislation we define it as clearly as possible. The Minister went into it in some degree today and in the other House as well. I am not sure that the terminology used is sufficient to describe it. This might be a better way of describing it and would be a more comprehensive description of industrial action.

The other amendment, which is also on industrial action, relates to the secret ballot in section 14 — that we would delete the clause "or other industrial action", so the unions shall not organise, participate in, sanction or support a strike without secret ballot. Of course, that is the other central issue. Having defined what industrial action is, we should try to determine what shall be the extent of the operation of the secret ballot, whether it will be for a petty matter, a trivial matter, a major matter, a local issue or a national issue. We have already gone over in very considerable detail the dangers of this section and noted that what it will do, as at present worded, is impose a very considerable onus on a trade union in relation to all its industrial actions. None of us has any objection to the principle of the secret ballot, but we do have problems about the operation of a secret ballot on as broad a base as is suggested here.

The Commission of Inquiry was set up in 1978 and reported in 1981. I have traced a number of their recommendations in this legislation, but they did not recommend the extensive powers in the context of the secret ballot. In fact, they did not envisage the secret ballot being used where there was a small number of workers involved in the context of the trade union generally. They envisaged that local actions or token actions or initial stages of industrial action could be undertaken without having to go through the quite enormous process that a secret ballot entails. The timescale is considerable when all the procedures are entered into between organising the meetings, the branch meetings, printing the ballots, the postal ballot, the return of the ballots, the counting, the collection of the ballot, the material then to be sent out to the members to be informed of it, the employer to go to the courts. We are talking about a very considerable time-scale. I estimate that it would take in the region of four weeks; so we are talking about a small matter that is being turned into an enormous procedure. That is the biggest problem I have with this section. The section is good in theory and principle but it imposes an unacceptable level of responsibility on a trade union in relation to any form of industrial action. Of all of the amendments I have down to this Bill, this amendment, if it was accepted, would improve the legislataion to the greatest extent.

I do not see why the Minister is not prepared to make a distinction between something as ultimate as strike action — which is the last resort process — and other forms of industrial action. If he does not differentiate between the two, as he is not doing in the Bill at present, I can easily prophesy that we are going to have an enormous number of wild cat strikes and activities where members are simply frustrated by these procedures which constrain them and put them into a straitjacket. I urge the Minister to take on board this amendment particularly and also to look again at the definition of "industrial action".

Amendment No. 3 reads:

In page 7, to delete lines 12 to 18 and substitute the following:—

"major 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 and which has the effect of significantly disrupting the business;".

I would agree with quite an amount of what Senator Costello said. There is a danger in the definition because it is obviously difficult, in six lines, to say exactly what we are hoping to see in operation. There is no doubt definitions are difficult. Perhaps we could strengthen the legislation by having the procedures take effect only where there is obviously a major industrial action, as we have in our amendment. This morning the Minister referred to a danger in relation ot trivial matters, but I do not think he envisages it as being part of the whole system of putting section 14 into effect. If there are codes of practice drawn up by the commission, perhaps some of these things can be avoided.

The definition in section 8 gives rise to a danger that one could find oneself in difficulties, particularly in relation to trivial matters, but which could still come within the scope of that section. The Minister might expand on the difficulties as he sees them. How can he ensure that trivial matters will not be included?

In supporting Senator Cosgrave, it is important to qualify industrial action as stated in section 8. If we do not do so, we will leave the interpretation, or maybe the lack of interpretation of this section open to people on the shop floor and to people charged with industrial relations responsibilities. The outcome may very well be a proliferation of unofficial disputes as union officials endeavour to do what they see as their duty to comply with the terms of this Bill, and insisting on doing so even though matters are seen to be trivial.

I accept what the Minister said on Second Stage. It is difficult to quantify or to detail what a major or a minor industrial action is. In industrial action, one area might be major and another area might not. In fact, if one is talking about one of the companies involved in the mail order business, the opening of an envelope or the failure to open an envelope might be major industrial action, but in a small company with little correspondence or in another type of business, it would be of no significance. We must leave it to the people directly involved with each dispute to decide the issue. By amending this Bill to refer to major industrial action, we will be allowing the people directly involved to interpret the situation on the ground as they see it and allowing the new Labour Relations Commission, if there is a dispute, to interpret it as well. Within the codes of practice that have been suggested, hopefully for different types of employment, they may be able to have different interpretations and definitions of what is "major" and what is "not major" industrial action.

The Bill as it stands ties the situation down to industrial action. I feel that the industrial relations area is always fluid, always involved with negotiations, discussions and eventually agreements. We must allow industrial relations to find its own level. I believe that by accepting our amendment the door will be opened to allow the people directly involved in the area — the unions, their members and the management — to come to terms with what is accepted as major action in their circumstances. I ask the House to support the amendment.

The whole question is how do you determine what is major and what is minor. You cannot be definitive in terms of this. If you start including certain areas and excluding others, you will have extreme difficulties.

The Minister this morning, when replying to the Second Stage debate, mentioned telephones specifically and said in certain organisations if the union decided not to answer telephones, not to open post and that sort of thing, it would have major consequences in some sectors. It may not be all that important in other areas but certain organisations are totally dependent on those areas. Therefore, how do you determine what is major and what is minor? In actual fact, it will be up to the unions to determine exactly how they will operate it in the first place. If you want to set down a definitive yardstick and criteria by which they are run, you are really affecting the unions and you are limiting them to organise for their own situation. The reply given was a very good argument why the amendment should not be accepted.

The interpretation of industrial action, because it is now enshrined in the legislation, will be done by the courts eventually. It will be challenged at some stage when a dispute arises in some area and the courts will then determine what is industrial action. They will not be liberal in their determination. Anything that will not comply with what management want on the floor, regardless of its merits, is likely to be interpreted as industrial action. That is fraught with great dangers for the whole industrial area. It is fraught with dangers for management as much as for unions. It will tie the union officials' hands and will create the situation where people will lose confidence in the union and will engage in unofficial disputes because their union cannot back them without a ballot. It will allow for a very bad situation in the industrial relations area.

I made some comments about this earlier. It is an important issue. Taking the last points first, it is our job in the legislation to determine what is industrial action. That is precisely why were do not include "minor" and "major". What could happen then is that someone would have to go to the courts to define "minor" and "major". We have had much of argument about this. If you put in "major" and "minor", nobody could decide what it was. It would have to be sent to the courts, the Senator's very point in reverse. You would have to accept it and you would then have to find out what does the Industrial Relations Act, 1989 mean, what is "major" and what is "minor"? Senators would know from the record of the other House that the most eminent people in industrial relations law were involved on one side or another on this amendment. The definition worked out following those discussions was broad, because you cannot narrow it. If you try to narrow it, you are into all the vague areas. That is one important point.

The second important point that has to be made is why is industrial action and why is the definition there in the first place. It is a protection for workers. I stressed this three or four times already in the House but I notice that each time Members are replying they either missed the point or do not understand the point. This is protection for workers and the only people who can challenge the trade union movement are the individual workers. The employer cannot come in. This is a protection mechanism.

This brings us back to Senator Costello's point. Let us take the example of a row over whether the cups in the canteen are blue or white. Many hypothetical cases have been put on the record of the Houses but I will play the game and give another hypothetical case. I do not think we will get any worker in the Irish workforce who will go off to the High Court and take an action because the cups were blue or white. I really do not think that will happen, say 20 weeks later, because these procedures were not completed, half the workforce were made redundant where would be their rights, what protection would exist for the workers? What we are proposing is for the protection of workers and has to be understood, in that regard. If this definition was narrow it would be directly against the interests of the trade union movement and they have accepted that.

I cannot accept the definition proposed by Senator Costello for a number of reasons. The amendment is imprecise and confusing. Secondly, it contains a number of internal contradictions and inconsistencies; for example, what is a partial refusal to work and what are services "normally provided"? The definition is also very restrictive and excludes many forms of primary action as well as secondary and tertiary action. I doubt if Senators would really advocate such a broad range of exclusions which would embrace many forms of serious and disruptive action from the scope of the balloting provisions. I will repeat it for Senator Cosgrave. If the Senator followed his own argument, we would open up the whole area of secondary picketing while, in the other House, his party argued strongly that I should close off other loopholes.

A definition such as proposed by the Seanad might not be in the best interests of the trade union movement for the reasons I have outlined. The provision in the Bill in relation to injunctions applies only in the case of strikes and industrial action as defined. This would not apply to any form of industrial action falling outside these definitions. It is important to bear in mind the principle which underlines the secret balloting provisions of the Bill because they are linked, as Senator Costello said — he is correct in that — namely, that workers have an entitlement to a democratic say in any decision as to whether they should become involved in a strike or other forms of industrial action. It is their protection and that is why the definition is there. That is why they are allowed to take action. That is why employers are not allowed to take action. That is why I excluded them and that is why the FIE probably fought so hard for it. They do not have that right, they cannot force a case in this. It is only an individual worker. I do not think that anyone would disagree with the principle of secret ballots or that anyone could seriously argue that the secret ballot should be confined to strikes. Other forms of industrial action are equally serious and disruptive. That has been proved time and time again.

Having established the importance of the basic principle of democracy through secret ballots, we enter into very dangerous territory if we start to qualify the principle by saying that the secret ballot should be required for some forms of industrial action but not for others. Senator Cosgrave asked me what my thinking on this was. It is precisely that, I feel that problems could result from accepting the second definition of industrial action proposed. It is not always clear beforehand what effect any form of industrial action will have, whether it be major or otherwise.

During negotiations on this I have had the benefit of people who have been involved in industrial relations for 30 years and varous court cases on issues like this but there has not been, since the foundation of the State, a definition of "major" and "minor" because what is minor at the start can be major after a while.

Many disputes have started on the most minor of issues but they arouse bitterness, other issues are drawn into it and then you end up with a major dispute. You cannot write into the definition what is minor and major on week one of the strike, what is minor and major on week two of the strike, what is minor and major on the final ballot of the strike and what is minor and major at the end of the strike. There is never a situation where a strike starts and keeps on the same even keel and finishes at the same even keel. It never happens that way. You can go up to the Labour Court, spend a few hours there, hear conciliation cases and read the orders. They develop from minor to major, to a more serious state and then perhaps to closures. I ask the Senators to accept that point.

The phrase "major industrial action" is entirely subjective and could give rise to great problems of interpretation. Would it cover work to rule, would it cover a ban on overtime, would it cover a go slow? I am putting this question to the Senators who are putting the amendment forward. What does "significantly disrupting the business" mean? The reality is that almost all forms of industrial action disrupt business to a considerable extent and that is why "significantly disrupt business" is of little use. For these reasons I feel we should stick to the definition set down in the Bill as drafted.

In regard to amendment No. 9 it is my intention that the provisions in relation to secret ballots will apply to other forms of industrial action as well as to strikes. Action short of full strike action can often be as damaging as the disruption caused by strikes. It can be more difficult to resolve and we have had experiences of that recently. It is, therefore, essential that this type of action should be subject to the secret ballot provisions. It is my understanding that it is already normal practice for unions to ballot their members on proposals for many forms of industrial action short of strike action.

I am sorry I have gone on for some length. I am conscious that some of the Senators have missed some of the points I have made at the start but for their benefit I will reiterate that it is the protection for the workers, and it is the worker, not the employer, who will be taking the action under the "industrial action" definition. Senator O'Toole raised some points on it last night. If it is a minor argument it does not matter. It is not the employer who is trying to enforce that there should be a ballot because it is the worker who has the protection. It is only if the worker feels aggrieved about it that the action is taken.

I will answer another point Senator Costello raised last night in the case; namely, would he have to have a full meeting of all the members of ASTI? If there were to be a ballot it would only be those directly affected. Those are the words that are used throughout the Act so it would be the people in one school. If you had a 10 or 20 teacher school, they would be the people directly affected. If it was a branch of one of the banks it would be the people involved in that branch. It is only if it is a national strike that it would be the whole group. It is the workers directly affected. That is the reason this definition, following long discussion and legal consideration by all sides involved in this, was regarded as the most appropriate definition to have in the Bill.

I do not wish to labour the point still further. No matter what we say, at the end of the day it is six of one and half a dozen of another. In either case people will have to resort to the courts at the end of the day. The Minister today spoke about the voluntary activities of teachers. We do not know what pressure would be put on by an employer in such a situation, where we might have a secret ballot in that situation. It is one that the Minister felt would not happen but he just does not know. Would the Minister not think that the last line there "which has the effect of significantly disrupting the business" is fairly specific? I listened carefully to the Minister and he said three or four times "which has the effect of disrupting the business". The word "significantly" is important. Perhaps the Minister feels that would be open to legal interpretation but his arguments are logical. He spoke about disputes ranging from minor to major disputes. May I raise a hypothetical question? Would it have been possible for the Minister to have specified the range of activities included?

The reason for not putting this precisely is that you could not list them. It is the impossibility of trying to list what is minor to major and how you would shift from minor to major. The employer would not be trying to do that. It would only be one of the teachers' union members. It is a protection for the worker so the employer would not be there trying to say "you did not apply the procedures". The employer has no say in the matter. If someone in the school disagreed with the procedure that person would have to say, "I do not believe the procedures were followed and this section says that we really should have had a definition". If a member of the ASTI went against his or her union because they did not agree with industrial action over what they considered to be a trivial matter and went to court because the procedure for allowing for a secret ballot had not been followed, having listened to all the legal arguments on this for a long time and the legal advice from various quarters, I do not think that person would not get anywhere in court, I am quite satisfied on that.

May I make two other important points.

I am quite happy that this will not lead to a spate of unofficial strikes but there are two things that could happen. There will be a practice developed and an understanding particularly in the Congress of Trade Unions of how this is interpreted. That is what will happen in many areas and there will be an interpretation which will be the norm. That does not mean that there will not always be someone who will try and beat that norm. That is a possibility with all our laws every day of the week. That practice will develop that will be a logical one that will have a certain code to it, I do not worry about it, because this section has been debated outside of the Houses of the Oireachtas probably more than anything else in this Bill. Everyone now knows that they have to come to an understanding otherwise there could be some difficulty.

The other point is also important. Say a group of workers, for whatever reason, do not follow the procedure and do not have the secret ballot — Senator O'Toole will be interested in this one in particular — and they go out effectively on what is official action, they will not lose the immunities. They will still have their immunities. Even if all was to go wrong they would still have their protection. That is a very important point and that is the reason I amended that section.

I respect the Minister's intentions in this matter that we would have procedures which are as democratic and comprehensive as possible. The intention of having the secret ballot is to protect the union and the members in the sense that the correct procedures are followed.

Could I just ask the Senators if they would look at subsection (3), on page 9, of the Bill. It states:

The rights conferred by a provision referred to in subsection (2) are conferred on the members of the trade union concerned and on no other person.

It answers Senator Jackman's point. It is only the member who can take action on any of these points, not anyone else.

That is in the context of the individual citizen's rights, whether he is a member of a trade union or otherwise. That is beside the point for the moment. Let us accept everything the Minister has said, that the intention of the legislation is to protect the union, to protect the worker who is a member of the union, so that a worker cannot have redress against the union if they go through the procedures and there is a ballot. That is a fair point.

Let us accept that the Minister does not want to distinguish between "minor" and "major", because it is very difficult to do that. However, we still come back to a situation that I am not satisfied has been answered adequately by the Minister, that is, that strike action is a major form of industrial action. All other forms of action are minor, relatively speaking. Strike action is the ultimate weapon in the trade union movement. Other forms of industrial action are steps along the course. That, effectively, is the situation in trade union terms.

In relation to a strike action, which is such a major event, it is quite proper to have secret ballots, but in the context of other industrial action a secret ballot will cause all sorts of problems because of the procedures that are laid down for the secret ballot. They are time-consuming, they involve all sorts of mechanisms affecting members, the union, the employer, in the context of information that has to be given, in communications and so on. This will be a cause of frustration. While the Minister's point is excellent in theory, namely, that we operate in a democracy and the best form of democracy obviously is the secret ballot, nevertheless, the practice leaves a lot to be desired.

The experience of trade unions is that there is a grey area between industrial action and the ultimate strike weapon. I am not quite satisfied with what the Minister has said in relation to this. In our union, the ASTI, we have had industrial action this year and we embarked on one form of industrial action, a withdrawal of service and a work-to-rule. It certainly was not strike action as such but another form of voluntary withdrawal of services.

The Minister has said that his interpretation of subsection (2) (a) is that it leaves it open for local action to be taken, that the secret ballot will only be taken when it directly affects a school in our case, or presumably a factory in another case, not a wider area, a branch area, a regional area or a national area. I cannot see how that conforms with the actual wording of the section, because it states:

The entitlement to vote, which shall be equally accorded 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.

It does not say in the future.

It will happen in the future, I can assure the Minister. If they are "to be called upon to engage in" it leaves it open to interpretation that it is not the immediate people concerned but the members of the union who may be affected. It is the procedure in my union where, first of all, we invoke local action in a school and we may go from there to a branch action, a regional action and maybe then to a national action. What exactly is the interpretation of this section?

If at the time you reasonably believe that these are the people who are involved and then it was extended, that is all right.

That is the Minister's interpretation.

That is what is in the Act. It is not my interpretation.

My interpretation of that is that it leaves it wide open to say that you will have to ballot the people whom it is reasonable at the time to believe would be called upon to engage in industrial action in relation to a matter, whether in this phase of the industrial action or another phase. The Minister is saying then he is talking about an initial phase, which might be the local phase, where the secret ballot will take place, then there might be an escalation and then there would be a second industrial action.

Then you have another ballot. When you have the first ballot you reasonably believe that these are the people involved. The Senator cannot have it both ways. If you reasonably believe that it is a local phase of the first stage, you have a local vote. If you then believe it will be a regional stage, it is another phase. If it happens to drift and you did not reasonably think it would, then you are in trouble.

We can see the problems in relation to logistics in all of that where in each of the phases you go through a process that will take place in the region taking a month to deal with, and then you go to another month. Then industrial action certainly becomes a very different kettle of fish.

The biggest strike we have had in the past few years in the country was organised and started within 24 hours. I spent 14 weeks slogging at it. I do not know what way the Senator runs his ballots but I am telling him what happens in the real world. Between 1,000 and 3,000 people had a ballot and they were out in 24 hours.

I agree entirely with those sentiments and the necessity to ensure that there is democracy. The Minister also referred to what will be the outcome of this and we will end up in the context of industrial action where a particular practice will probably develop. A particular practice has developed in my union and in the other teacher unions and it is not wildcat action. It is graduated action whereby you embark on a token form of industrial action, by and large, you let people know it is a serious matter and there is cooling down period.

This legislation is ideal for the Senator's members because this is to try to get everyone else to take it easy as well and keep down the temperature.

I would have to agree with the Minister. There is a distinction between strike and other industrial action. I presume the Minister has decided that he will leave that section in and that he will not take out "or other industrial action" without a secret ballot and that the Minister is satisfied, too, that at every stage along the line a secret ballot must take place. That is the interpretation I take from it.

I am simply saying to the Minister that I agree with the theory, I agree with the principle, it is democratic, it is proper, but I am telling him that it will cause major problems in both areas, the industrial action being the mandatory subject of a ballot and, secondly, who will be called upon to engage in the industrial action? For logistic and time-scale reasons these will cause major problems.

I know something about it. I have dealt with the precise situation as it is in that legislation for some period of time now. I have faced with the questions which Senator Costello has raised. They become real questions when one is faced with a rule book or, in this case, the law. It raises the question he has posed. In my own union, we have had to interpret our rulebook in this way, that a new phase is a new action. There is no such thing as an extended action. Senator Costello is right; it can slow down the process.

What I like to do in those situations, and I have proposed that it be done three times in the last decade, is to ballot every single member everywhere. This raises an immediate difficulty. As the organiser of the industrial action, I can decide any way I wish, by any combination of membership, where I have a majority. I might have a majority in Antrim and Kerry and in that case I would just pull out those two counties; I mitht have a majority in Athenry and Athlone and pull out those two towns; I might have only one school in Kildare and pull out that school.

My point is that there are as many ways through this legislation via industrial action as there are days in the year. What is local and what is national and what is neighbourhood is wide open to interpretation. There can be flexibility within it. There is not necessarily a difference of opinion between the point that Senator Costello raised and the answer the Minister gave but I know from experience that the points Senator Costello raised are real questions. They only become real questions for a trade union official when he is faced with the decision; am I within my rights in declaring industrial action in that area and how would a court look upon it?

I am happy with this section. It now gives the force of law to a practice which I have been happily involved in for quite some time, and that is to take a national ballot, look at the results and then decide where it would be appropriate to take industrial action. I do not think the Minister intended to do that but it gives that level of flexibility. Given the right set of circumstances, I could take out the whole country. That would certainly be part of any process for any period of time. There will be difficulties but there will also be ways around that part of it.

The more I listened to the debate on what is industrial action, the more I was convinced of what I said this morning, that this is a lawyer's bonanza. When is an action industrial and when is it not? If, for instance, an employer by edict says to a group of workers that he is directing them to work an extra hour a week from now on and the employees say they will not do it, and the unions say not to worsen their conditions of service and not to do it, that is an industrial action. I do not believe it requires a ballot because the common law would be that an employer would not be entitled to worsen conditions of service or contract of a member. In such a situation, if the work-force decided not to take action where would they stand vis-a-vis this legislation?

Both Senators raised valid points. In relation to Senator O'Toole's point I do not mind if the ballot is a national one but what I am concerned about is that there is a ballot. In many cases trade unions will not have a ballot because it is not the employer who will be taken the action under section 14. If people look under section 14 (3) they will see that all the rights are conferred on the individual worker. When Senator O'Toole is at his desk in INTO headquarters asking if he is right or wrong in taking this action, he must ask if he is right or wrong in taking the action in the eyes of his members because nobody else can take him to court. When the Senator says it will become a legal nightmare, he is saying he will make decisions which will necessitate his own membership taking him to court. That will not happen. Under section 14 (3) the powers are conferred only on the members. Once the members are not displeased with the action they will not bring the person to court. The people who would bring him to court would have to be his own members because under this section nobody else can do it.

I will make one very important point to Senator Costello. I take on board many of his views and concerns. What are the benefits for a union which complies with the regulations properly? If you have a ballot of the members involved then you are protected. The employer cannot run out and get a midnight court injunction, or an ex parte injunction. If you state your fair case neither can he get an interlocutory injunction, so there are considerable benefits.

Let us look at what happens in industry all the time. In a dispute, in a battle between employers and workers, not in a battle between unions and their members — that does happen but not very often although I know there have been some horrific examples of it — the protection is that a union official directs his local committee to have a ballot. Unless it has a very big membership they can have a ballot that night if it is urgent. They give seven days notice and then the employer cannot go out and get an ex parte injunction trying to wrongfoot them or use delaying tactics. Neither can the employer, if the members state a fair case, get an interlocutory injunction. That is something they did not have before now in law. It is a considerable benefit and it is seen and appreciated as such by the trade union movement.

It is not true to say that only the members of the union can take an action. I was going to develop this point last night but I cannot think of the legal phrases at the moment. The courts have become far more liberal — we had an example of it a short time ago — about who has an interest in a case. Courts have declared regularly that people might have an interest in a case or in an action which they would not have said ten years ago. Let us take the example of a union wishing to take industrial action in an area. They identify a workplace A in county B where they feel they would have effective industrial action. Workplace A is the real objective but because of the legislation I am now looking at county B. The reality is I know I can get a majority of the members of my union in county B to take industrial action on the issue and I put it to a ballot of the members. All the members of the union are tied in to obeying the directions of the union following the course of events. The ballot takes place and every single worker in workplace A votes against industrial action. The industrial action I want to take, however, is in county B which includes workplace A. Now I have complied with the regulations. I have got a 90 per cent vote in favour of industrial action in the county and I take out that county for industrial action.

The workers in the factory are tied in to the rules of the union and will obey them but the owner of the factory might say this is not acceptable because in his workplace the workers voted against industrial action. He will not know how his workers voted because in the section it says "as soon as practicable... the number of ballot papers issued and the number of votes cast..." There is no requirement on me to break down the figures workplace by workplace. I have looked very carefully at this. I am acting completely within the law. I am completely within my rights. I am getting the effective action I am talking about but there is a very disgruntled employer who says he will get this guy for being a bit too smart with the rules and he takes it to the courts. He will be able to test it in the courts.

Whatever might happen later in the courts, under this legislation he is excluded. Subsection (3) states that the rights conferred by a provision referred to in subsection (2) are conferred on members of the trade union concerned and no other person.

Amendment put and declared lost.
Amendment No. 3 not moved.
Question proposed: "That section 8 stand part of the Bill."

I am very interested in the definition of "worker" in the third paragraph on page 7. This question has been bothering me for a long time. Would Members of the Houses of the Oireachtas be recognised as a group of workers for the purposes of this legislation? I have very strong reasons for asking this.

We would not.

I was afraid the Minister would say that. He is thinking about who employs them. In other words, elected people would not have authority to form a trade union for a negotiating licence.

We hold elected office which would not be regarded as employment. I would be sympathetic to the cause.

Question put and agreed to.
Sections 9 and 10 agreed to.
NEW SECTION.

I move amendment No. 4:

In page 8, before section 11, to insert a new section as follows:

"11. —Any person shall have the right to peacefully picket any place where an employer works or carries on business or happens to be (other than a home)."

Section 11 deals entirely with primary and secondary picketing and is the same as that in the 1906 Act. Really what the Minister is doing, by and large, is taking on board in section 11 (1) and (2) what was in that Act, with some amendments.

What I am concerned about is the constitutional provision which entitles every citizen to picket peacefully. The section states that it shall be lawful only in the context of the trade union movement which, of course, is desirable but it infringes on a constitutional provision which it is not entitled to do. It is not necessary to delete the other parts of section 11. While the law can regulate matters in the context of the Constitution, it cannot take them away and it cannot cut off a constitutional right from a citizen as it seems to state here. I suggest that we add a section on here that would enshrine that constitutional right in this legislation.

I wonder if the Senator thought this through? The amendment states: "Any person shall have the right to peacefully picket any place where an employer works or carries on business or happens to be (other than a home)". Clearly at some stage in composing this amendment, it was decided to exclude picketing someone's home. We would agree that is a form of intimidation. The amendment seems to go far beyond what any reasonable person would suggest. The employer might happen to be at a football match, at a social occasion or something like that. This is an extraordinary amendment and I find difficulty in believing it is meant seriously.

I accept that if the Senator leaves out the last phrase.

Acceptance of this amendment would delete section 11 of the Bill which is a very important section. It is one that we amended very substantially in the other House. I will not go through it line by line. The section outlines where immunities will apply in relation to both primary and secondary picketing. Essentially, immunity is confined to picketing at a place of business of a worker's own employer which I believe is reasonable.

The amendment proposed by Senator Costello is extremely wide because it would allow widespread picketing. The whole purpose of the section is to define and limit picketing. I would not accept deletion of the section which would have the effect of widening the whole area beyond what is allowed at present. The House knows what we are endeavouring to do. One of the functions of the legislation is to control picketing and define it more tightly. That would all go in one swoop if we were to accept this amendment.

I cannot accept the amendment. The Constitution gives the right of peaceful assembly which can be controlled in the public interest. The courts have limited the right to picket. Many court cases dealing with industrial relations have been centred on picketing policy. This defines and controls it and at last trade union leaders, general secretaries, executives and others know where they stand. Previously there was ambiguity in this area but section 11 makes it clear. I am concerned about accepting any amendments, never mind one that would abolish the entire section. I reject the amendment.

The intention of the amendment is to draw attention to the constitutinal provision which has been interpreted by constitutional lawyers in the context of the right to assembly as giving the right to picket to every citizen. I agree with some of the provisions in section 11 but the constitutional provision is much broader. I am not sure if it is proper for legislation to restrict it. You cannot restrict in this fashion what seems to be a constitutional right.

I want to draw the Minister's attention to the apparent conflict between the Constitution and the restriction that is embodied in this legislation. I do not see the amendment in terms of having to delete section 11. I am not opposing section 11, far from it. The Minister suggests that would be the intention. My intention is to expand the parameters, to include this extra element which would appear to fulfil that section of the Constitution.

The right of peaceful assembly can be controlled in the public interest. Since 1941 picketing has been confined to members of trade unions who hold negotiating licences. The 1941 Act is important in relation to the constitutional issue. Up until now there have been arguments about where one can picket. This section states you can picket at your place of employment and you can picket at a second place if there is direct evidence that a person is frustrating the strike. You have to prove that is the case. The Senator in his amendment excluded homes and we have also done so. If the Senator were to follow his line of argument it would mean that if there were a dispute in Senator Conroy's business his employees could be outside the Dáil picketing. I am totally in favour of allowing a legitimate picket to follow an employer who is trying to work with another employer to break a strike but to allow it on a wide scale would cause havoc.

I support the Minister. if we were to accept that amendment it would effectively delete section 11 of the Bill. All sides were in agreement on Second Stage in relation to picketing and the difficulties involved in shopping centres, etc. If you were to define a shopping centre as a place of work because a person was working there and you placed a picket on the entrance to the shopping centre, that would cause difficulty. If we were to accept that amendment we would be doing away with what is extremely important and progressive legislation.

I am not very clear about what Senator Costello has in mind. I would like him to give an instance of a specific person exercising his or her right in relation to this. I do not see it as obliterating the whole section. However, I am still not clear about the situation of a private citizen in relation to that picket.

There is the constitutional guarantee that citizens have the right to peacefully assemble. The interpretation that has been put on that by some writers on legal matters is that it covers the area of picketing and, therefore, once it is in the context of communicating a particular matter that covers the area of dispute with an employer, that in a sense the right of the citizen to peacefully picket an employer in the context of the trade union movement is enshrined in a broader sense in our Constitution and rather than allowing that to lapse totally in this context it should be established in the legislation. I did not intend for the amendment to delete section 11. I have been told that would be the effect of it is but that is not my intention. My intention is to expand it to ensure that element of the constitutional right is allowed to remain and to ensure that it is not simply restricted to the particular legal interpretation here.

While I agree with this legal formulation and have no intention of trying to delete any part of section 11, either on primary or secondary picketing, I am saying there is a broader constitutional principle involved than is stated here. It is not incorporated in the terms of this provision.

For the purpose of the Committee Stage debate, the Minister is the person who has responsibility, through the Chair, to bring the Bill through Committee Stage and all questions addressed must be through the Chair to the Minister and not to Senator Costello on the presumption that he thinks he is the Minister.

I accept the Minister is the person in the right place. Does he think the Constitution is sufficient to protect that right and it does not necessarily have to be in the context of the Bill?

Yes, and particularly the way it has been interpreted. What we are talking about here is picketing for the purpose of furthering a trade dispute. These are the rules that apply in those circumstances. I accept that Senator Costello is not trying to delete section 11 but if I added in his amendment everything else would fall. However, I accept his arguments.

What the Senator is attempting to do is to get picketing accepted as something that is connected with the right of association. You could argue about that. If the constitutional aspect is right, assembly will also give you the right to picket. However, you have then to go back to the 1941 Act which said the right to picket was the right of a trade union member and of a person with a negotiating licence. I do not think we can accept the amendment.

Amendment, by leave, withdrawn.
SECTION 11.

I move amendment No. 5:

In page 8, subsection (1), between lines 10 and 11, to insert the following:

"(b) for the purposes of this section ‘to attend at a place' shall include the following:

(i) directly outside the actual entrance or entrances to the place of employment, where that entrance or entrances open on to a public place,

(ii) directly outside the actual entrance or entrances to a place of employment, where that entrance or entrances open on to a place which is a place normally open to the public but which is private property including ports, airports, shopping centres, industrial estates and other multi-employment locations unless the owner of that private property indicates in writing to the workers concerned that he objects to such attendance on his property,

(iii) the nearest approach or approaches to the actual place of employment where either—

(I) an owner of private property indicates in writing his objection as provided for in subparagraph (ii) to an attendance at the actual place of employment, or

(II) it is not practicable or possible to attend at a point closer to the entrance or entrances to the actual place of employment.".

The Minister referred to this in his Second Stage speech and I would welcome his further comments. He talks about protection of the right to property. I want to put a situation to him where a dispute takes place in a small enterprise in a shopping centre. Under our proposal the union can place a picket unless the owner specifically states in writing that it is not acceptable. Under the present Act, as I see it, the converse is the situation, the union cannot place a picket in the centre unless they have obtained permission from the owner of the small enterprise to do so. What employer who sees a union putting a picket on a small enterprise will want to contain it within that when he knows that if the picket is placed on the larger centre there would be more pressure on the union to come to some settlement? I would welcome the Minister's view on it.

I do not think there is any great disagreement on this; it is just a question of where we are trying to get to. I understand Senator Neville and Senator Cosgrave's concern is in moving these amendments. I know Senator Neville is worried about the question of picketing at multi-employment complexes such as ports, airports, industrial estates and shopping centres as he has outlined in the scenario which he has put before us. I share his concern in this area and I would like to emphasise that the wording in the Bill was devised with these type of situations in mind, as I referred to earlier. The present wording will achieve the same end but in a much less complicated way than the arrangement proposed by the Senator.

The fear has been expressed that the use of the words "at approaches to" will lead to picketing at the entrances to and approaches to multi-employment complexes but that ignores the words which come immediately before those words, namely, at or "where that is not practicable". The test to be applied is whether it is practical in all the circumstances to picket at the individual employer's place of business inside the complex. Normally it should be possible to arrange that the picket be placed directly at the premises of the employer involved in the dispute. It would only be where the owner of the complex objected to the picketing taking place inside the complex that the saver would then come into effect, that the picket could be placed outside.

The situation where an employer could choose to exercise his rights to prevent trespass onto his property is clearly recognised in the Senators' amendment and I acknowledge that. I said already, the Senator and I are in agreement on what we are seeking to do but I am satisfied, following the legal advice of the parliamentary draftsman, that the wording of the Bill will achieve this end in a less complicated way. For this reason, I ask the Senator to withdraw the amendment because we have achieved what both of us wish to achieve.

I want to ask the Minister a further question. If the small employer within the centre objected to the picket on the basis that it was on private property, even though he did not own that property, even though it was the property of the owner of the complex rather than the individual employer, would he not have a right under the Constitution to do so and if he took it to court would it not be found to be within his rights as a small employer to object to picketing in private property even though he did not own that property but had an interest in it by way of lease or whatever?

As I understand it, even in that instance the owner would also have to agree because the property rights really only come into play if you are dealing with the owner. In those circumstances the small employer would not have that right. However, if he got the agreement of the property owner, then we could not overrule the property owner's rights. He would have to get the agreement of the property owner. Subject to checking, I do not think that would hold because that is not related to the constitutional position. It is the property rights that are related to that. If he got the agreement of the owner — presumably he is leasing it——

I understand that, if he gets the agreement of the owner, for example, most of the leases are for 20 or 25 years. Surely the owner of a lease of 20 years acquires property rights in those circumstances? Could he not hold he has a right to object to picketing in those circumstances on the basis that it is private property and that he has ownership, even though it is of a lease?

I am sure as the Senator says, particularly in a long-term lease, he could establish a property right. I was thinking more of shops with 12 month contracts, 24 month leases. I do not think they could establish that. On a long lease he could establish a property right.

My main concern here is the area of a port. I am directly involved with Foynes Harbour and we have something like 300 people employed in the port itself. All of the leases are for not less than 15 or 20 years. I suggest my amendment will cover that situation and places the onus on the owner, rather than on the employee, to obtain permission as is the case in the Bill. The Minister is shifting the onus to the employer rather than placing the onus on the employee. In most instances, if an employee in a dispute goes to an owner and asks for permission to do anything, he will be refused. In particular the owner will refuse permission to picket right outside his door because, quite understandably an employer will try to put as much pressure as possible on a union to compromise or negotiate. In the case of a port where there are 300 or 400 people employed and there is a small employer employing three, four or five, there is a lot more pressure on a union to settle if they are representing 300 or 400 people than in the case of three or four employees, where they could have a protracted strike. It would be good tactics from the employer's point of view in a dispute to handle it in that fashion.

Both in an industrial estate and in a port area the other employers would want the owner to allow them to put the picket at the employment of the individual rather than at the entrance of the complex. That is why "at or near" is a far better definition. If they can confine the picket to the premises in dispute, it does not cause overall disruption. That is one point.

On the other point about property rights, they would have to get the agreement of the owner. There is considerable case law in property rights. They would have to establish a property right and it would be questionable whether a lease or rent or agreement would suffice. I do not think it would. A property right is ownership.

The shopping centre is a relatively new concept. Would the same criteria be used within all those multipurpose, multi-industrial, multi-unit and multi-shop areas? It might be necessary to tease out the differences as regards leasing and industrial concerns within them. I am worried about the lack of legislation in certain areas of new shopping centres. There is considerable worry for owners and management as to who owns what. In the Limerick area this is a concern at the moment. Does the Minister think there is sufficient legislation in relation to the new shopping centres? In the case of ports the case is fairly straightforward; in Dublin Port and Docks a situation arose in regard to a protracted industrial dispute. Shopping centres may need more careful analysis as regards ownership or leasing or whatever, there is the question of the local authority's involvement, whether it is owned by a management, whether it is owned by some mega-developer who lives in another part of the country. It is rather more complex because it is a new concept. Perhaps the Minister might give a little more thought to the implications for the shopping centre complex.

I agree that the point made by the Senator is important. That is why we have changed the position from what it was, where you could place a picket anywhere at the approaches. The first objective test in this is: it shall be lawful for one or more persons acting on their own behalf and on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at... — that is the first part — or where that is not practicable, at the approaches to, a place where an employer who is party to a trade dispute works or carries on business. It will be the same now — just to confirm what the Senator asked — in any of these multi-disputes the interpretation of this Bill can only be that the picket must be "at" the place of business. It is only then, if they have the reason as stated in the rest of section 11 (2) that they go anywhere else. That will be the rule that will be applied. That will also be linked into the situation relating to injunctions.

Amendment put and declared lost.

Amendments Nos. 6 and 7 are related and may be discussed together.

I move amendment No. 6:

In page 8, subsection (3), line 25, after "life-preserving services" to insert "or any necessary action by an employer in other essential services covered by regulations made by the Minister after consultations with bodies representative of employers and trade unions."

There are other essential services other than health services. There could be a situation where the fire brigade or even the members of a local authority could be regarded a very essential service. Take a case much as we had earlier this year of severe storms where extensive damage was caused. The Minister is aware of the moneys voted by Government to various local authorities to repair the damage. The local authority in such circumstances could become a very essential service in removing trees, dealing with floods or other difficulties that arise during severe storms. The Bill should cover such circumstances. The amendment uses the words "after consultations with bodies representative of employers and trade unions". The Minister, after consultation with bodies representative of employers and trade unions should identify these people in such circumstances as being essential services. Many Senators who are members of local councils will appreciate what I am saying. Similarly, in circumstances where there is a series of forest fires and in danger of getting totally out of control and there is a strike in the services concerned it should be regarded as an essential service. We are saying that it should not be confined to the health service, which of course is the most essential service, but should be broader to include life-preserving services.

Subsection (3) is included to make it clear that any action taken by the health services to maintain life-preserving services would not be regarded as action taken to frustrate a strike. It is most unlikely that any court would hold that such action was taken for the purpose of frustrating a strike rather then for the purpose of preserving life. The subsection is designed to put the matter beyond doubt. I am sure Senators will agree that the health services are a special case and any doubts about this should be removed.

With regard to the amendment proposed by the Senator, the question of disputes in essential services in general is a much broader issue and one which I do not feel is amenable to regulation in the way proposed by Senator Neville. To attempt to arrive at any agreed definition of what constitutes an essential service would in itself be a daunting task. It is not just one or two services, you get into a huge area. I have constantly taken the view that the best way to cater for the wide range of issues which arise in the context of disputes in esential services is by means of codes of practice. I referred to that last night on Second Stage and again today. The drawing up of codes of practice to cover all aspects of such disputes, including the critical issue of adequate levels of emergency cover, is something which I intend to ask the proposed Labour Relations Commission to give priority attention to when drawing up codes of practice for essential services.

The change proposed would be strongly opposed by the trade union movement and would be counter-productive. I accept the need for what Senator Neville is saying. I can give the assurance that it is one of the first areas where we intend to get a code of practice. However, to write in essential services generally would prohibit industrial action to a great many workers and that is something that would not be acceptable to the trade union movement.

May I ask the Minister what sort of timescale he would see in relation to the commission drawing up these codes of practice? Will it be by the end of the year or within six months? I do not want to tie him down but perhaps he could give us a rough guideline.

I want to support the Minister in relation to the sentiments expressed regarding listing essential services. The health services and life-saving services are very specific but if we were to detail and list a whole range of essential services where would it stop? That is the difficulty. You could get into a quagmire because with such a long list inevitably some services that people regard as essential would be left out. The provision would have to be specific and, if extended, it would include a range of services that some people might consider essential and others might not.

I am sure Senator McKenna will accept the scenario I referred to earlier as necessary in order to have an organised approach. I am quite happy with the Minister's assurance that this will be one of the first issues for the Labour Relations Commission in compiling its code of practice and to withdraw the amendment.

Just to say, the Commission hopefully, will be set up in the autumn and certainly within a few days will be talking about this.

It will be given priority?

It will be given two or three items and this is one.

Amendment, by leave withdrawn.
Amendment No. 7 not moved.
Section 11 agreed to.
Sections 12 and 13 agreed to.
NEW SECTION.

I move amendment No. 8:

In page 9, before section 14, to insert a new section as follows:

"14. —The dismissal of a person for taking part in industrial action, picketing, or a strike which is lawful under this Act, shall be an unfair dismissal within the meaning of the Unfair Dismissals Act, 1977."

Is the Minister satisfied in relation to this section that there are no circumstances where somebody who engages in lawful industrial action can be dismissed and that that matter is adequately covered by the Unfair Dismissals Act?

Section 5 (2) of the Unfair Dismissals Act, 1977 provides that the dismissal of an individual employee for taking part in a strike or other industrial action is an unfair dismissal. In the circumstances I do not propose to accept the amendment. It is covered in section 5 (2) and I think the Senator will be happy with that.

Amendment, by leave, withdrawn.
SECTION 14.
Amendments Nos. 9 to 15 inclusive, not moved.

I move amendment No. 16:

In page 9, to delete lines 49 and 50 and substitute the following:

"(iii) the overall result of the ballot."

That is a matter of some concern to me in the context of what we have already discussed in regard to secret ballot which was dealt with to some degree last night on Second Stage. The question at issue here is that the democratic process is adhered to in the context of the secret ballot and then as soon as practical after the conduct of that secret ballot the results shall be forwarded to the members in question and that the trade union shall take all reasonable steps to ensure that that is done. There is a list of the requirements on the trade union, in regard to the number of ballot papers issued, the number of votes cast and then in regard to the two controversial issues as far as I am concerned, the number of votes in favour of the proposal and the number of votes against the proposal.

The reason for my reservations about this is that immediately that is done every single member of the union will be aware of precisely what the voting was, whether or not there was a large percentage in favour of the particular form of industrial action, whether or not it was 50.01 per cent, whether it was a very small majority or a massive majority. That means the trade union leadership then is automatically at a disadvantage because in terms of any large trade union if every single member is informed it is only a matter of time until management or the employers are aware of the position. Therefore, the trade union leadership is at a disadvantage in dealing with the employer because their hand is known immediately and the strength of the membership support for the particular form of action can be assessed immediately. It means, effectively, that the trade union is negotiating with one hand tied behind its back.

I accept wholeheartedly the Minister's genuine attempt to be as democratic as possible about it and that is the provision the Bill is for the benefit of members and that the members are the people who can take action against the union if democtatic procedures are not followed. However, may I say to the Minister it is sufficient for the overall result of the ballot to be indicated to members. Do not forget that the wording in sub-paragraph (f) is, as soon as practicable after the conduct of a secret ballot, so it must take place after the ballot has been conducted and, the implication is prior to the negotiations. The trade union is in that limbo when it is negotiating and it needs all the strength it can get but the employers are not similarly penalised. We do not know, for example, in regard to the employer whether the board of directors had stood firm or otherwise on a proposed course of action. That information is secret and is not transmitted to the other side. The effect of this move to democratise is to penalise the trade union and to strengthen the hand of the employer.

I would urge the Minister to take the amendment on board. It certainly would be very beneficial in ensuring that the playing field remained level during the course of the negotiations.

I have to disagree with the Senator there. He mentioned the union would immediately be at a disadvantage in relation to the negotiations with the employer but as I read the section it gives flexibility to the trade union involved in a sense because it states "as soon as practicable" and also that the trade union shall take reasonable steps. That does not suggest that the result should be made known immediately. In fact, it states specifically "as soon as practicable". As a member of a trade union I would wish to know the outcome of a vote in terms of who voted for and who voted against and the result. That does not mean that I will want to know the result the minute a vote is taken. The Bill gives flexibility to a trade union. I wonder how all of us in this House would feel if when elections have been held, it was just the overall percentage result that was given. I do not think any of us would be prepared to accept that. I emphasise again that the section gives flexibility to the trade union in relation to this aspect. I disagree with the Senator's proposition that it puts the union at a disadvantage. It does not.

During the miners' strike in England, when McGregor was on the employers side, there was a major row about a secret ballot. Scargill was looking for the suport of his members and was running the whole show through the media and he was being urged every day of the week by McGregor to put it to a secret ballot of the members. It was the weakening point in terms of the public perception of how Scargill operated that campaign. Some years later when McGregor got round to writing his memoirs it transpired he had been using a technique which some of us in Ireland have been using for a number of years, that is, he was doing a survey of the members of the opposition. In other words, he was surveying the miners by means of one of the survey companies, and assessing the views of the members of the NUM during the course of the dispute. During the time he was publicly challenging Scargill to commit this vote to a secret ballot, he knew that Scargill had a 70 per cent vote from his own members. Scargill did not know that and he was not prepared to risk a ballot on it. As it now transpires, had he done so he would have won and would probably have won the dispute.

That shows the other side of the argument, because I support totally what Senator Costello said. I mentioned this on Second Stage last night. The reality is that the majority of workers find the idea of the withdrawal of labour abhorrent, as any of us would. It is a very serious step for people to take. We are talking about a secret ballot here and I support Senator Costello's point on it. It is like a game of poker where one fool has his cards on the table and others are holding their cards close to their chests. In other words, we are saying that when a ballot is held the results should be made available to the opposition.

I listened closely to what Senator Costello said and his view was not to keep secret, forever, the results of the ballot. His view was that what is proposed would weaken the union during the course of a dispute. For instance, in my view "as soon as is practicable" in these situations will mean in the following annual report of the union; in other words, the results are kept within the union and published with other results of the union at the AGM. They should not be published during the course of a dispute. That is the important point. If the information is required to be published during the dispute, that is not on. I will push the section to a vote if that is the position, because I do not believe any trade union should be asked to give part of their bargaining power to the opposition during the course of a dispute. If the Minister were to say that it would never be practicable to demand this during the course of a dispute but to demand it as soon as would be convenient, thereafter then I would have no difficulty with this. I am not interested in keeping secrets, I am all for glasnost. It is the timing that is important. What are the Minister's views on this?

There are three points I want to make on this. First, we are not talking about telling the country, we are talking about telling members.

That is like the Cabinet secrets.

If people feel that their members might run off and tell management, that is a problem for union leadership and their members. Second, members are entitled to be informed of the detailed results and I see no reason why they should not receive detailed information. The whole question of secret ballots is based on the principle of giving members a say and, in keeping with this, they should be fully informed of the outcome of the action. Thirdly, the rights conferred on members of a trade union in section 14 (4) should be conferred on the members concerned and on no other person. When and how the result is given should be a matter for trade union membership, so if they were going to take action, it would be against the membership.

I understand what Senators O'Toole, Costello and McKenna are saying here. In my view, "as soon as practicable" would take account of how a leadership of a union would have to act in such crucial times.

An Leas-Chathaoirleach

Is the amendment withdrawn?

The amendment is not withdrawn. I love these interpretations and explanations. "As soon as practicable" is a wonderful expression. It would be great if that was the only phrase but unfortunately it is followed immediately by a negativing phrase, "as soon as practicable after the conduct of a secret ballot". If the phrase "as soon as practicable" was left out it would read "the trade union shall take reasonable steps to make known..".

The vote would have to be completed and it would be as soon as practicable afterwards. If the Senator pushes me on this it could make life very difficult. What I have said makes it clear.

I take it from the Minister that is what he understands the position to be but we have had these problems with legislation before.

"As soon as practicable" is a term that is commonly used in legislation. It has a flexible interpretation. If the Senator reads the second part with the first part he will see it would be the person objecting to what was proposed or who had a legal right to do that would be a member of the union. If union leadership interpreted "as is practicable" as I outlined, I do not think the union membership in this case would object; it would be a tactical negotiation as outlined by Senator O'Toole.

That leads me to where it states "the trade union shall take reasonable steps to make known to its members entitled to vote in the ballot. ..". In fact, that would reveal information to a limited number of members only those entitled to vote in a particular ballot. That would mean that other members——

The Senator is going into the semantics of it now.

I am taking the wording that is there. First, the wording says "after the conduct of a secret ballot" and follows with "members entitled to vote in the ballot", which specifically excludes as an entitlement those other members who are not entitled to vote. Is it, as the Minister says, that in a local action there is a ballot just of those members in the school or factory, and for any other phase of the action there is a further ballot? Therefore, the result of that particular ballot should only be promulgated as far as those members involved are concerned as they are the ones who got the express entitlement. Does that mean that the members who are not be involved in this phase but who may be involved in a later one do not have automatic entitlement under this legislation? Is it discretionary?

That is a matter for the union. Members have rights. Sometimes people might not like to give members rights. They might like them to stand outside the gate for six months carrying pickets, not knowing whether there was a ballot or not. Members have a right to know what happens.

We are being democratic now.

If the Senator wants examples as to why this section is included, I would have to give him very sad examples. I would have to tell him of times when ballot papers were used as Christmas decorations and as paper airplanes being thrown across rooms. I have answered what was a fair question from Senators Costello and O'Toole as to how this would be interpreted. The Senator has achieved what he wanted to achieve.

I am happy with the Minister's interpretation. My concern is that this may not be the interpretation of a future Minister.

"As soon as practicable" is a term commonly used and it is well chosen.

Is the Minister satisfied that it has that intent?

An Leas-Chathaoirleach

Is the amendment withdrawn?

Yes, I will withdraw it on that understanding.

Amendment, by leave, withdrawn.
Section 14 agreed to.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill".

I asked a specific question on this and the Minister responded to it in his winding up speech on section 2. I mentioned last night the difficulty in dealing with the Registrar of Friendly Societies. To put it at its most basic level, the Registrar has to comply with the law of the last century, which requires the registration of trade unions with the Registrar of Friendly Societies. I take it the Registrar is also required to comply with the laws and regulations of this Bill. It is necessary to amend some of the legislation under which the Registrar operates at the moment? Are we in the process of doing that? At the moment the Registrar insists that unions comply with an acceptable strategy in order to change rules. Any registrar would absolutely refuse to accept a change of rule from the administration of the union, in other words, from the executive of the union. What are we doing to enable the Registrar to accept this kind of rule?

Many union rule books would have written into them that the AGM or the annual conference is the supreme ruling body of the union. That is a normal provision. However, any time this has been tested in a court, the court has taken the view that even the supreme ruling body of the union is subject to the rules of the union. Therefore, putting both of these together, the rules governing the Registrar and the experience in the courts, what are we doing to prevent a successful legal challenge on section 15? Are we required to amend the legislation? Are we, in fact, amending it? Where are we giving the enabling powers to the Registrar to accept changes of rule under this system?

I understand the historical concerns of Senator O'Toole but those provisions have been pointed out to the Registrar who has no objection to them.

So the Registrar has approved this?

Question put and agreed to.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."

This deals with unions not complying with the procedure for a secret ballot. I asked this question last night on Second Stage and I will ask it again. In the event of a trade union official being found to have interfered with a secret ballot, what is the position? Is there a case against such a person? After this legislation is enacted, it becomes the law of the land for trade unions and, therefore, officers of the trade unions are required to comply with the law. If an officer of a trade union or a branch of a trade union seeks to pervert the procedure of a secret ballot, will any action be taken against him?

I want to clarify two points. Section 16 ensures that the union has the issue in its rule book and complies with it. The answer to Senator O'Toole's other question is yes. If a member feels that an official has in some way interfered with his right under section 14 (3), that member can take an action against the union.

What kind of action is it? Is it criminal or civil and what would be the charge?

It would be a civil action because members would be able to make a case that they, had a contract through the rule book with their union and if that is breached they could take a civil action against it. This applies under any provision in section 14 (2). I understand the concern about this but I cannot see it happening. It is unlikely that there will be many cases under section 14 (2). The Senator will accept that is why the rights and protections on the other side are necessary in this Bill. I cannot claim it as my own idea; it comes from a number of people who have argued for these protections on the other side. The provisions will prove themselves and will pass the test of time.

Question put and agreed to.
Sections 17 to 20, inclusive, agreed to.
SECTION 21.

I move amendment No. 17:

In page 12, between lines 37 and 38, to insert the following:

"(3) Where non-licenced associations of workers operating as a negotiating body with an employer or employers exist prior to the introduction of the Act, and satisfy the Minister on this, and subsequent to the introduction of the Act, apply for a negotiating licence, it may be granted at the Minister's discretion." I move this amendment on the basis that there are in existence many staff associations who are not licensed trade unions and who are not covered by this Bill. They have a negotiating arrangement with their employer and, in these circumstances, there is a very good relationship between the employer and such associations. What is the position when the relationship deteriorates, as often happens because of change of management or changes within the organisations, and the association wishes to obtain a licence but does not wish to join any particular union? I know of one group who did not wish to join any association on religious grounds.

What about the Fourth Commandment?

If an association has less than 1,000 members the Minister may, at his discretion, grant them a negotiating licence.

Is the Senator speaking of bodies which, under existing legislation, have exempted body status or of bodies which have just local recognition from an employer as being a local body?

Local recognition.

Their position has not changed. The amendment appears to be seeking to give them a negotiating licence. That could not be done because unions have to go through very stringent procedures and conditions to get a negotiating licence. If they have exempted body status, which effectively means they cannot strike but they can negotiate, or if they have recognition by employers that they are a local negotiation committee like in-house committees, there is no change. The amendment is different. It seeks to give these bodies a privileged position in a short-cut way, that a trade union cannot do. If the Senator is asking that they stay as they are, there is no difficulty. If he is asking to give them a short path through to a negotiating licence, I would have to say no. There is a different procedure for that and they must follow the trade union rules.

I am happy they should go through any procedures which are laid down but if there are fewer than 1,000 members, under this Bill, they cannot obtain a negotiating licence.

I am sorry if I am upsetting Senator McKenna by bringing this issue to the Seanad but I am entitled to do so and I know the Minister accepts that as my entitlement. If these bodies have fewer than 1,000 members, the Minister should be in a position to grant them a negotiating licence because they have been in existence prior to the Act.

Basically, I could summarise it by saying they should join a union. I am flabbergast to hear that somebody could have a religious viewpoint which would create a difficulty for them joining a trade union. A trade union is the most Christian form of activity a worker could engage in because all it does is look after the interests of the employees. This would go against the whole spirit of the legislation. The small groups there at the moment would not lose out; they would be protected. You would create a mushrooming of other small groups going into the system when there is a consensus on all sides that it is time to move towards amalgamation and to form larger units. I would have great difficulty with it.

I assure Senator Neville that he is not upsetting me or causing me any problems. It is seldom Senator O'Toole and I agree but in this instance I think we are 100 per cent in agreement. Regarding the sentiments he expressed in relation to the mushrooming of many small unions, why should a group of individuals wish to become members of a trade union? Why would a small group of people wish to go off on their own and get a negotiating licence for themselves? It is against the whole spirit of the thrust of this Bill. The emphasis in relation to affording expenses for amalgamation and so on would be against the spirit of this Bill.

I understand the points the Senator is making. If they are just a negotiating body and do not wish to join a trade union for whatever reason, then they are not affected. If they have exempted body status they can again negotiate but they do not have a full negotiating licence. Under the 1971 Act there is provision in certain circumstances for an organisation to go to the High Court and prove they are a body that should have a full negotiating licence even though they do not comply with what was then the figure of 500. That will not change. That provision is still in the 1971 Act. I am not sure what organisation the Senator is talking about but there are three assurances; first, if it is a local negotiating body, they are not affected by this legislation; secondly, if they have accepted body status, like many medical organisations, they can do everything but they cannot strike; and thirdly, if they are some kind of homogenous group they can apply under the 1971 Act. If the Senator is referring to a particular body we could check with the Department. Either way, the Senator can advise them that they are protected.

An Leas-Chathaoirleach

Is the amendment withdrawn?

I will withdraw the amendment. I advised them to join a union but if they choose not to that is their right. Having obtained the views of the Minister I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.
Section 21 agreed to.
SECTION 22.

I move amendment No. 17a:

In page 13, subsection (2), line 12, to delete ", within the period of two years immediately..

I should explain that amalgamation of unions cost money because there is an immediate duplicity of resources in one area and a shortage in another. That happens by virtue of the fact that there would be two people to do certain jobs and nobody to do the extra work in other areas. A fair amount of reorganisation has to take place and invariably there are costs in terms of assuring the livelihood of people who may become redundant or whatever. There are all sorts of other costs as well, like building costs, which have to be looked at.

The Minister very wisely in section 22(2) outlined that he may provide a grant of such amount as he thinks fit towards such expenses as he is satisfied were incurred, within the two years immediately prior to an attempt to amalgamate unions. I think this would be in a situation where the attempt to amalgamate has failed. Two years, in some instances, is perhaps too short a period and it might well be an unnecessary constraint. People could operate over a period of years and try to achieve some form of a developed co-operative support towards a transfer of engagements. All I am asking is that the Minister delete the reference to the two years.

This is a very reasonable amendment because the Minister is establishing in section 22(1) the positive approach of a grant towards expenses for amalgamations and then being prepared to carry the can, so to speak, where there have been unsuccessful attempts. This amendment is to ensure that the successful and the unsuccessful attempts are covered. As Senator O'Toole has pointed out, there may very well be a long gestation period in relation to the amalgamation of two and more unions. Certainly in the present circumstances where teacher unions have started, hopefully, along that course, it is quite possible that the period envisaged would be in excess of two years. In a normal situation it would be in excess of that and there is no guarantee that it would be successful.

I remember in the seventies when the teacher unions attempted to go down this road it was unsuccessful. The Minister has given it his blessing and imprimatur and is very strongly urging rationalisation. It is part of his policy — and that of his Department — to delete this two year limit in regard to expenses incurred by the unions in amalgamation. It would be welcomed by the trade union movement who are in the process of — or contemplating — amalgamations or mergers.

I have every confidence in the negotiating teams for the ASTI, TUI and INTO. I do not think any danger will arise in that instance. I think we are clear, and I hope it is understood, that in the case of a successful transfer or amalgamation there is no difficulty, there is no time limit, and the affairs are cleared up. The limit started off as being a six month limit but I made the point that the biggest amalgamation ever since the foundation of the State, the case of SIPTU, took 12 months with the tens of thousands of workers they have and I thought that by getting it to two——

Was there a secret ballot of the membership?

Yes, a full secret ballot of membership. I have to pay the stamps, so I know. It cost me a lot of money — and twice, because under the Registrar of Titles you have to have two ballots. On a serious note, the costs arise really close to the amalgamation. The costs arise on the ballots, on the printing of the new rule book, on the halls for the meetings. I have seen a number of amalgamations. Not alone are there in the period of two years but the really heavy costs come in the last three or four months. That is a fair point.

Having had to negotiate the principle of this with the Department of Finance, we hope to go back again because of what we are doing here. I thank Senator Costello and Senator O'Toole for acknowledging that I am committed to these amalgamations. This should cover the bulk of the costs. There is no doubt but that there are heavy costs. It is not really the legal costs; it is the cost of postage, of halls, of rule books, of negotiations with the registrar and tying up the deals.

I hate going back to the teaching unions again, but let us say the course of action that is contemplated by the three teacher unions has not been fully endorsed by all the unions at present but it goes to the point where there is a council of teacher unions established, which is a phase along the road towards eventual unity. Can we take it that all along that course, once that particular structural step is taken, that that is the starting point? Is that the way in which the Department of Labour would envisage it?

In a number of cases where we have had that type of position, where you have various old craft unions amalgamating, we have taken it in stages. The way we have worked is to discuss it in the Department of Finance and once that is successful you do not have to worry about the time limit, you can go back. Of course, you have to produce evidence and so on; but in the case of the small unions it is not a substantial amount of money. But, having had the experience and having had to drift through the accounts of a number of amalgamations, I would warn that in the case of the Senators, whose members are spread throughout the land, it is very costly and very exhausting.

Amendment, by leave, withdrawn.
Section 22 agreed to.
SECTION 23.

An Leas-Chathaoirleach

Amendments Nos. 17b and 17c are related and may be discussed together.

I move amendment No. 17b:

In page 13, line 35, to delete paragraph (c).

Amendments Nos. 17b and 17c are the most critical, because it goes against everything in this legislation so far that there are groups of workers who are denied access to the process of conciliation and settlement. It is unjustifiable and untenable. I listened to the Minister's response this morning and the response does not meet my particular need. That is why I tabled these amendments and they are crucial. I have had to live with this and teachers have had to live with it. It just is not good enough.

As I said last night on Second Stage, when the Industrial Relations Act, 1946, was being introduced by the Dáil by the then Minister for Industry and Commerce, Seán Lemass, it was in the middle of an industrial dispute. The INTO had 5,000 members on the streets of Dublin during that week. All the debate that took place — and I took the trouble to read over it — made constant references to the fact of the teachers being involved in the dispute. I have no doubt that this was a major motivating force in excluding teachers at that stage from the Labour Court. That is only a matter of history. I am not interested in what happened before I was born, although barely before I was born. That is not the issue. The issue for me is a very simple one: If I take the group I know best, national teachers, national teachers do not have a conditions of service system of conciliation and arbitration. I want to put that on the record. There is no conciliation and arbitration system in the Department of Education for national teachers. Neither is there access to the Labour Court for national teachers, because this section, which is a direct lift from the 1946 Act, excludes them very definitely from it.

To add insult to injury, the new Labour Relations Commission — though I am not clear what it does — apparently are further excluded from the process of, to quote the Bill, "settlement and prevention of disputes". It does not make any sense at all. In his reply this morning the Minister indicated that those unions in the public service who already have conciliation and arbitration procedure are negotiating and there there will be some development to allow them access to what is in this Bill. Unfortunately, the reality is that the members I am talking about do not have a conciliations and arbitration system for conditions of service. I cannot allow pass me here today something which denies my members access to the process of negotiation, to the process of negotiated settlement through negotiation of the Labour Court.

I have looked at paragraphs (a) to (f) in section 23(1) many times and wondered why it was there. I have looked at some of the labour legislation in the seventies. I am quoting from memory, but it was probably the Unfair Dismissals Act, 1974. In that Act there is a list of people who are also excluded, and it is clearly lifted also from the 1946 Act but in that case they took the national teachers out of the exclusions — in other words, they allowed them access at that time. I do not know why. I want to hear the Minister justify why the national teachers of Ireland do not have access to a conditions of service conciliation and arbitration and to the Labour Court. What is the problem? They are employed by boards of management right through the country.

My colleague, Senator Costello, has also put his name to the amendment and I presume he will make a similar, not quite identical, point in regard to secondary teachers. Something similar but also different could be said about the teachers in the vocational system. Both of my colleagues in those two unions have got some form of negotiating structure. There is none for my members. It just is not good enough. We have been attempting for many years to get agreement on it. I do not believe the Minister will be able to justify the position.

I will give the House a graphic example of a situation last year where we had a group of almost 2,000 substitute teachers in primary schools who were being paid pin money — well qualified excellent teachers who could not live on the amount of money they were being paid for substitute teaching and could not depend on the process of payment. We could not negotiate for them because they did not have access to a C and A scheme. They were excluded from it. We could not have access to the Labour Court because they were excluded from it by this legislation. We eventually had to go through an incredibly circuitous route to get agreement from the Department of the Taoiseach, the Department of Finance, the Department of Labour and the Department of Education and approval by Cabinet for the setting up of ad hoc arbitration in order to deal with the case. That is ridiculous in this day and age. There is no case to be made for it. I ask the Minister to take that section out of it now and let industrial relations progress for my members also. I cannot accept the position and I will not withdraw my amendment.

I am making the same argument for both cases, with one minor difference: that amendment No. 17c which asks that:

(2) Workers, as defined in section 8 who do not have access to the Labour Court and who do not have access to a Conditions of Service Conciliation and Arbitration scheme, shall have access to the Labour Relations Commission.

I do not know any other group of workers in the country in that system and I see no reason why the Minister could not accept that amendment. It does not create a problem with the 1946 legislation, nor does it create a problem with section 23. I have put it there just as a fallback position. I am not that happy with it; but I would prefer to fall back on the second amendment, though really the first amendment is the one that is crucial. I want to know why national teachers continued to be excluded. I want to hear the arguments that went on in the Department of Labour before this section was framed.

I would like to echo the sentiments expressed by Senator O'Toole. It is difficult to see why there should be specific exclusions of people in the Civil Service, the public service and teachers identified and excluded specifically from it. The limited access we have to conciliation and arbitration and the fact that so many of our attempts in relation to claims are stymied when we go down along that road are one of the stumbling blocks that we are coming across all the time. I am sure the Minister will have something to say about why there are certain rules and regulations in relation to the Industrial Relations Act for certain sectors of workers and other sectors are excluded.

We should be looking in terms of the same access for everybody if we are talking about full democratisation, which this legislation is about. It is a comprehensive piece of legislation. It is updating the 1906 Act as well as a number of other Acts. Therefore, this is the type of matter the Minister should be addressing, one that is causing all sorts of hiccups and obstacles for the trade union movement in the public sector and in the area where my union is involved. I wonder can the Minister give us justification for that; and, if he is not prepared to provide it strictly within those terms, is he prepared to give a particular access in the context of the new Labour Relations Commission? Is he going to provide a specific route of access in industrial relations terms to the members of my union?

I support the amendment wholeheartedly. It extends to secondary teachers, national teachers and, indeed, to all teachers.

I would support Senators O'Toole and Costello in relation to the exclusion of a teacher in a secondary school. Obviously, being an ASTI representative, I am aware of this over some time and I would hope that the Minister would show us some way by which there would be access to the Labour Relations Commission.

Just as the three previous speakers have said, I, too, would like to see a uniform approach. If there is a good reason, it will be interesting to hear it. I believe there should be common access and treatment, for the various matters mentioned by the previous speakers. I would like the Minister to respond.

I thank the Senators for making their points. First, can I explain the first aspect of this, the definition of worker contained in the section, because it determines those categories of workers who have access to the services of the Labour Court, the Rights Commissioners and the Labour Relations Commission. It makes no changes to the existing definition but brings together a definition which is at present spread over a number of pieces of legislation. The categories of workers excluded from access to the Labour Court and the Rights Commissioners are covered instead by conciliation and arbitration schemes and the question of providing access to the Labour Court and other services for such categories is one for discussion and agreement between the parties to the various conciliation schemes, and that has always been the way.

A provision is contained in subsection (5) of this section to allow the definition of "worker" to be amended by order should there be agreement to do this and, in the absence of such an agreement, I am not in a position to make any amendments to the definition.

Senators O'Toole, Costello and Jackman made points about the teachers' scheme. This was debated in the Dáil, as I mentioned this morning, not from the point of view of the teachers' scheme but in regard to the Local Government Public Services Union and their C and A scheme. They have a position where there is a certain arbitrable licence and they wanted a debate to try to get extension of what is arbitrable and what is not. That is the first aspect they wanted changed. I think the same applies to other C and A schemes as well. It was not put forward in the early part of this debate or in the discussions.

The second part is where there are issues that perhaps are not arbitrable, not in the list of arbitrable items or for the extension of arbitrable items where you could get access to the Labour Court, items of discipline or other more minor items. As I mentioned earlier on today, there is the difficulty that, if you go outside of the C and A scheme and go direct to the Rights Commissioner service with some of these issues, people can appeal a Rights Commissioner's decision and then they can go back to the Labour Court. You will then have a position where you will have people having issues in the C and A scheme, issues in the Rights Commissioner service and issues on appeal from the Rights Commissioner service to the Labour Court. It was felt, certainly in relation to the Local Government Public Services C and A scheme — and I think it would be equally so in regard to the teachers' C and A scheme, where Senator O'Toole was outlining the difficulties — that they go one road or the other. I do not think it does much for the industrial relations service, but even less for the group affected, regardless of what group is affected.

If there are some issues in the C and A scheme being negotiated between the parties involved, which in the case the Senator is talking about would be the teachers, the Department of Education and the official side represented by the Department of Finance, they could have items in either the Labour Relations Commission, which we referred to or, in the Rights Commissioner service and perhaps have some of them on appeal to the Labour Court. That would definitely be spreading the resources of the industrial relations service all over the place and would not be advisable. From inquiries I have made I understand that the question of third party proceedings, which is essentially what is being sought by the Senators, for access to these services is being discussed under the consiliation and arbitration schemes for local authority and health service workers and the Civil Service.

On the question of bringing the teachers' C and A scheme into that, that is a matter to raise with the official side. I believe that such issues are best handled within the established negotiating machinery. Given the variety and special employment status of the many groups of public servants covered by C and A schemes, it would be particularly important that structures appropriate to their culture and operating environment be worked out, not using the arm of the industrial relations machinery that is not appropriate for these areas, regardless of whether it is Health, Environment or Education.

Furthermore, it is by no means clear that, given the C and A tradition, all public service groups in the C and A schemes would wish to bring their problems to a Rights Commissioner with the prospect of a right of appeal to the Labour Court or to any other body. I am familiar with differences of opinion in the health service, but I am not familiar with what is in the education service. Ongoing discussions between the parties, the various C and A schemes, including the local authority and health services schemes, are taking place with a view to working out solutions tailored to the precise needs of their own services. I would not wish to put myself in the position of pre-empting the outcome of these discussions. The parties raised this issue with me many months ago in the early part of these discussions and asked me, through the Department of Finance and through the local authority services, through Phil Flynn, Local Government and Public Services Union, to get discussions going. I know also, although I was not directly involved, that the same applies to the health C and A scheme.

That is all I can say that is of use and value in trying to assist the Senators. I cannot amend it because it is outside my ambit. However, if it is helpful to the Senators, I will raise in the discussions which I have assisted to get going in the other areas that the issue of the teachers' conciliation and arbitration scheme should equally be taken on board. That is as far as I can go. It is not within my ambit to change this Bill. As I said, I do have powers if there is agreement afterwards to amend by order but, if it is done the way it has been envisaged in the other areas, it seems to me that uniformity of the schemes would be sensible. There is no point in having the local authority conciliation and arbitration scheme and the health conciliation and arbitration scheme one way and having the teachers' conciliation and arbitration scheme the other way. The review of them all, including the Civil Service conciliation and arbitration scheme, and the official side response should also be discussed with the teachers. However, I have not the power to do that and it would not have to be done by legislation if raised through the conciliation and arbitration schemes. I will just give a commitment to the House that I will raise these issues which have been brought up today by a number of Senators, the amendments, and the arguments put forward, bring that back to the official side and ask for it to be reviewed. That is as far as I can go.

Most of the points I raised have not been addressed by the Minister. I want to be quite specific about it. I want to deal with the issues the Minister has raised. I asked him to justify why teachers are excluded from the scheme. The answer he gave was that he had not changed the 1964 Act. That is no answer. We have been changing the 1964 Act since last night at 8 o'clock, line by line and section by section. I want to know why. I am going to ask the question twice, why, why? Who in the Department of Labour said that they were going to exclude national teachers, secondary teachers and vocational teachers? I want to hear the reason. I do not need to be told that it has not been changed. I said it is a direct lift from the 1964 Act. I can see that. I want to know why?

Can I just say if I was to start amending the conciliation and arbitration scheme of the Department of Education, freely negotiated between the teachers, the Senators would be in here saying something else. Please do not lecture me on the conciliation and arbitration scheme. It is not my responsibility, Senator.

Let me deal with it, Minister. You have given the impression — and this is what I find most annoying — that there is already a conciliation and arbitration scheme. Let me say again for the record, there are no conditions of service conciliation and arbitration scheme for teachers——

There is a conciliation and arbitration scheme.

The Chair would like to point out that we must have order.

There is for salaries and allowances only. There are no ongoing discussions to extend that because we cannot——

Why are you not nego tiating it?

We have requested it from the Minister's Department, from the Department of Education, from the Taoiseach. We raised it at a meeting on 18 January, 1988, in Government Buildings with the Minister, the Taoiseach and the Minister for Education. We made the same request.

(Interruptions.)

Acting Chairman

Order, please. The Chair would like to point out that this Committee Stage will proceed through the normal channels. Therefore, I would ask that the contributions be made through the Chair. I ask Senator O'Toole to continue, and I ask that he should not be interrupted. The Minister will get every opportunity to answer the points he raises.

I want to make the point, as I have said already, that there is no conciliation and arbitration scheme. We have raised it with previous Ministers for Education. I will list them to you — back from Martin O'Donoghue every single one of them up along. Governments or somebody has refused to negotiate with us on it. That is the reality. I am not playing games here. What is being discussed at the moment with the other people in the public service are people who already have a conditions of service conciliation and arbitration scheme. That is the reality. I am not making this up as we go along.

The other point — and I want to stress this very firmly — is the idea of the double chance, of taking one thing to conciliation and arbitration and then going on from there. I agree completely with the Minister on this. I always exclude from agreements the opportunity for people to go one road or the other. For instance, from grievance procedures I would not allow people to take up equality cases. There is a road to be followed for unfair dismissals. There is the 1977 legislation to be followed for equality cases — incidentally, teachers can get in through the back door to the Labour Court through the 1977 equality legislation. It is the only place that they have access.

That is reality. It is not a question of moving outside the conciliation and arbitration scheme. It is not a question of asking the Minister to do away with the conciliation and arbitration schemes. There is just no scheme at the moment for teachers because it has not been acceptable for anyone to negotiate with us. We have raised it with Minister after Minister and it has been refused. We now find ourselves in the astonishing situation where, when there is a problem to be resolved, there an ad hoc mechanism has to be set up.

All I want the Minister to say is, first, that this legislation might be changed; and, second, that it is an untenable situation. More than anything else, I want to hear the justification why we were excluded. There is no justification coming forward. I think the Minister will understand my frustration on the issue for that particular reason. There are no ongoing discussions of this matter.

Could I just add to that, Minister, before you reply. The existing conciliation and arbitration scheme is a very limited scheme referring to salary matters with the very minimum conditions. We are always coming up with problems in relation to conciliation and arbitration, finding that so many matters we want to deal with are simply not arbitrable and we are stopped; we are stopped in the middle of industrial negotiations. There is very little we can do because of the type of scheme we have. I would be interested to know whether the Minister will address this. The Minister may or may not be able to give a reason other than stating that it is in the 1946 Act. Of course, that is not good enough as a reason. It is a simple statement that the legislation is here. It is like when we were changing the 1964 Criminal Justice Act last week. Why were certain provisions in the 1990 Criminal Justice (No. 2) Bill? The reason was that they were in the 1964 Act. That was a piece of bad updating of legislation on a matter that should have been looked into.

The Minister will say that it would mean a large degree of work in relation to the whole conciliation and arbitration matter. Would the Minister make a commitment that he would be prepared to enter into negotiations with the teacher bodies with a view to bringing the teacher unions and the other public service unions, the local authorities and so on, within the provisions of this legislation, as stated under Part III? He certainly did not specify any principled objection to doing so. Would he say whether his Department and the Minister himself would now feel that there is an anomaly here and that the best approach would be to enter into negotiations to eliminate it as quickly as possible and then to introduce amending provisions to incorporate it into the present legislation?

I understand the frustration expressed by Senators O'Toole, Costello and Jackman and by my own good colleague, Senator Mullooly, who has been responsible for these affairs for many years from the teachers' union point of view. I am aware of the previous discussions with Senator O'Toole regarding the issue, but I could never be accused of being responsible for changing the conciliation and arbitration scheme for teachers. That would be far outside my remit. My agitation was caused by the suggestion that I would dare cross into the voids of the teachers unions. They hardly allow the Minister for Education to do that, never mind the Minister for Labour. However, I will take up this issue and respond. The negotiations are a matter primarily for the official side represented by the Departments of Finance and Education.

I am not putting up any defence for it. I have not changed the definition. I have not changed any of the procedures that were there since 1946. The only correction I would make on all that is that I think Senator O'Toole was wrong in the figures that were outside the gate in 1946. I think it was 6,000 and not 5,000. I am not disputing any of the other details.

And they never voted for us afterwards.

I am not disputing any other details. I cannot change arbitrarily what is in the teachers conciliation and arbitration scheme or any other conciliation and arbitration scheme. It is not within the powers of this legislation or of the Minister for Labour. There seems to be a difficulty in regard to the conditions of employment for teachers. I discussed this with Senator O'Toole and some of his teachers' leaders some years ago. I clearly recall that. I am not sure what the difficulties are or why this is not being moved on. However, I will undertake to raise the matter with the official side and the Department of Education to see if some progress is being made in this regard. I would be glad to try to do that.

I accept that this is a responsibility that should be dealt with through the Minister for Education as opposed to the Minister for Labour. I would be the first to say that. However, we are not discussing legislation from the Department of Education. Legislation from the Department of Education is a rare thing indeed. This is the only legislation I have in front of me. This is the only place I can vent my frustration with the system that is there. I accept the good faith of the Minister on the matter. I would like to ask three questions.

First, I heard him say at an earlier stage that there was some question of changing the definition of a worker under a section of one of the Acts. I would just like to know if that is the case. I just want to know what the options are. Second, I have not quite understood why, even if the 1946 Act did not allow access to the Labour Court — and I can see reasons for doing that where those unions have a conciliation scheme already — we cannot have access to the Labour Relations Commission. I do not agree either that there should be conciliation and then go to Labour Court. That defeats the whole purpose of the scheme. That is not the issue for me. What I do not understand is why we cannot have access to the Labour Relations Commission. There are ongoing disputes.

I left the House here 40 minutes ago to deal with a dispute in the west of Ireland, which is fairly well known and which cannot be dealt with. In the last year my union spent approximately £60,000 employing, at its own expense, rights commissioners to do the job that everyone else gets done under the system, in order to try to get fair play or to resolve or solve problems. There is a very fair case in those situations. Why could we not have access to that part of it? There does not seem to be a section in the legislation in front of me which says that worker as defined under section 23 will exclude certain people when dealing with the prevention and solving of problems under the Labour Relations Commission. I feel that that at least would be half-way down the road. Third, I want from the Minister a commitment that he would be prepared to set up the negotiations under the terms of his Department, and that within the ambit of his Department he would respond to the teacher unions either as a group or to each one. They are in different employments, so it would be unclear if there was one system for all three. I would like to hear the Minister respond favourably to a request from the unions to discuss that type of thing. So there are three issues there, Minister.

The first issue relates to the question of the order, and being able to change the definition in section 23 (5) where the Government may by order amend the definition of worker in subsection (1) and may by order revoke or amend any such order. That is in a case where there is agreement between any of the conciliation and arbitration schemes and the official side in the appropriate Department. Then, by order under this legislation that can be enacted. That, I think, is the appropriate way to do it. When it is properly negotiated, we will then enact it. The second point is the question of £60,000. Some of the exemptions that are there as to what is arbitable and not arbitable create these difficulties under the conciliation and arbitration scheme. That is equally so in some of the other conciliation and arbitration schemes. I accept this. I have said it in the other House; I said it before at Question Time in the other House; I have said it publicly and at some of the conferences. The arbitable items are, in some cases, from another period and they are too narrow. There is, clearly, a need to review the arbitable areas. That is one issue. The second issue is where you have what are termed normally in industrial relations terms in conciliation and abitration schemes small issues that should not cause any difficulty, but since there is nowhere to go with them so, they create major difficulties. A kind of Rights Commissioner Service would be valuable to them. That is there for some of the other schemes as well. They have this limited position. That is an area that can be looked at. The definition of "workers" would rule teachers out. I do not want to go into that debate again, but the expression "trade dispute" means that there are definitions under the 1946 Act which exclude teachers. I am not trying to answer by saying that can never change, which is what the Senators are saying. If teacher groups were unfairly left out under that Act and their conciliation and arbitration scheme is limited, then they should try to make progress on it.

I think — I have said this years ago to Senator O'Toole — we have not had the chance of debating this in the House, but if I can help by raising this issue — and Senator Mullooly has made this point to me before too — I and my Department will try to start the discussions. We have done it in the terms of conciliation and arbitration schemes, not so much in the Department of Health, but I was directly involved in the one for local authority/health workers — I was involved with the local authority workers. I will raise it in the same way for the teachers and see if we can make some progress. I accept there is a point. I am not here to say what is in or what is not in. That is not my job. It is a matter for consideration by the official side in Departments of Finance and Education. I have been requested by all sides of the House to raise this, and I will undertake to do that.

I wish to make a brief comment on the sincerity with which the Minister will address this issue. I would implore that it would be done fairly soon for the simple reason that the Minister will pre-empt quite a lot of pressure, because one of the days the teacher unions will have amalagamated under the Council of Teachers. Obviously, they will be in a far stronger negotiating position then. All the anomalies and uniformities that will emerge as a result indicate that this item should be addressed as soon as possible.

I think they arise now. There are great anomolies in nominating the system at present. In the hospitals system — and it arises through all the conciliation and arbitration schemes — health boards will go to conciliation and arbitration schemes and voluntary hospitals will go to the Labour Court. When they work side by side you have some going one way, and when you have a joint case, they want to go both ways. It is not just a case of tidying this up for any group of workers. From the State point of view, you have people coming at you from all sides. The trade union movement over the years have worked out where it is to their advantage and what case goes to the Labour Court and what case goes to the conciliation and arbitration scheme. They have been trying to get somebody to create an anomaly and then say there are analogous grades. I think everyone is familiar with that. I played that from the other side of the fence in years past. The argument I have made is that these schemes have to be looked at, but I do not think people can go two ways at the same time. That is where we have to start the debate. I have given an undertaking to raise this issue in the Dáil. I certainly will communicate with the Senators who are interested.

I would like to thank the Minister, through you, a Leas-Chathaoirligh. As I understand him, following negotiations and due agreement, he would be prepared to recommend to the Government an order to amend the definition of worker, if that was the most appropriate course of action. There is an "either/or" situation here and I just want to be in one or the other. We have never had the luxury of the either/or situation unfortunately. We have had Hobson's choice. I am not trying to set up an either/or situation because at the end of the day that is in nobody's interest. I just want a way of resolving problems. The other thing I understand the Minister to have said is that he would be prepared to facilitate, following a request from the teacher unions the negotiations that would be required through the public service for a conciliation and arbitration scheme for that group. On that basis, I would like to thank the Minister for a very full and spirited response to my proposal. I will withdraw the amendment on that basis.

Amendment, by leave, withdrawn.

I move amendment No. 17c:

In page 13, between lines 38 and 39, to insert a new subsection as follows:

"(2) Workers, as defined in section 8, who do not have access to the Labour Court and who do not have access to a Conditions of Service Conciliation and Arbitration scheme, shall have access to the Labour Relations Commission."

I thank the Minister for agreeing to give a commitment that this matter be resolved. It would seem that the appropriate way would be to introduce an amendment under subsection (5) of this section in relation to the definition of a worker. What is required then are the procedures. There are many bodies involved such as the Public Service and, of course, teachers who come under a variety of categories, or none. Can we take it now that our unions can write to the Minister, or do we wait for contact from the Minister on this matter? Is it a matter we can deal with without going to the Department of Education? Obviously, the Department of Education would have some say in this matter as well. It is a matter we have discussed for so long now and we are agreed on this side that it is unsatisfactory. The Minister agrees that it is unsatisfactory, as well. Could we say that the Minister is agreeable to an approach from us, or do we wait for an approach from the Minister to begin the negotiations on this matter?

I think you could say that what the Minister has said he will do.

Amendment, by leave, withdrawn.
Section 23 agreed to.
SECTION 24.

Acting Chairman

Amendment No. 18 is out of order.

Amendment No. 18 not moved.
Question proposed: "That section 24 stand part of the Bill."

The Minister gave a firm commitment today and reiterated his wish for female representation on the Industrial Relations Commission. I ask again that he would urge the nominating bodies to secure female representation on that commission, and that he would show the lead himself by nominating females himself.

Just briefly on the section, was the figure six ordinary members arrived at after the discussions which the Minister had prior to the bringing in of this Bill? Was six the number the Minister had arrived at?

It was. I wish to say to Senator Jackman — and Senator Honan would agree — that we should try to get as much female representation as possible. The sad thing about being Minister for Labour is that you do not have the luxury other Ministers have where they can appoint all their boards, because there was a practice set up by Sean Lemass 45 years ago where the social partners would have nominating rights. What normally happens on a board of six is that the employers and the trade union movement will pick four and the Minister is left to pick two. The Minister has to cover certain interests that have not been covered by the other two bodies. They have to cover a broad representation. It applies to all the boards. If they do not go along with female representation, it makes it very difficult for the Minister. The upsetting thing is that when I have a particular quota people read in the newspaper the number of females the Minister has appointed. I do not have authority over the whole lot.

I agree totally with what Senator Jackman has said and I will see if we can convince them to give equal representation. It is a difficult task but we will strive to achieve this. From previous experience, it will be extremely difficult. When appointing the appeals tribunal last year, I wrote to all of the nominating bodies involved, both employers and trade unions, and pointed out to them that there were a number of females in the country and that perhaps they would take due recognition of that fact. I think I got one or two nominations from the employers. Though the unions had far more I only got one or two from them also. I will continue the task and will use the record of this debate to try to influence them to do a little better than they have done previously.

I thank the Minister and say that the fact that he would give the 50 per cent representation would exert a certain subtle influence on the other organisations to follow suit. It depends on who makes the appointments first. I think that it can be done.

What happens is that I always have to wait until the end. Otherwise, they would say that is 15 per cent for women and now they have to do nothing. It is a very difficult task. The social partners and other organisations have a blind spot about this matter. It is not the Government who are normally guilty of keeping women off State boards. I am serious when I say that there is great difficulty within the nominating bodies.

Question put and agreed to.
Section 25 agreed to.
SECTION 26.

I move amendment No. 19:

In page 16, between lines 13 and 14, to insert the following:

"(4) Notwithstanding subsections (1) (a) and (3) the Court may investigate a dispute if the parties to the dispute request a court investigation and where a conciliation conference has been held at which the parties made a genuine attempt to resolve the issues in dispute."

This section concerns itself with matters and situations where investigations of a dispute are undertaken by the Labour Court. It is in line with the thinking of the Minister that the Labour Court is the last resort, and how the matter comes from the Labour Relations Commission. What I am introducing here is another scenario where the party involved has access to the Labour Court. The difference here is that what is being stated is that the court may investigate a dispute if the parties to a dispute request a court investigation, and where a conciliation conference has been held at which the parties made a genuine attempt to resolve the issues in dispute. It is a new combination here, giving the priority to the parties themselves where they make the request. There are various options there already. I am introducing a further option — that this would be an appropriate one for referring the matter to the Labour Court.

At present the Labour Court, under the 1969 Act, may investigate a dispute when conciliation has been held and the parties request it to investigate. One of the main reasons for the establishment of the commission is to ensure that as many issues as possible are settled without recourse to the Labour Court. This has to be reflected in the legislation. The wording in the amendment proposed by the Senator would create the same difficulties of interpretation which arises with an earlier wording in my proposals which require the parties to make a bona fide attempt at settlement. The words made a "genuine attempt" could also give rise to disagreements as to whether an attempt at settlement has been made. The wording in the Bill requiring the commission to be satisfied that no further efforts on its part will advance the resolution of the dispute gets over the difficulty of interpretation. If operated flexibly and in a commonsense way, as is the intention, the provision should not give rise to problems, while at the same time making it clear that as many disputes as possible should be settled at conciliation.

Amendment, by leave, withdrawn.

I move amendment No. 20:

In page 16, between lines 13 and 14, to insert the following:

"(5) Notwithstanding subsections 1 (a) and (3) the Court may investigate a dispute in exceptional circumstances, on is own initiative following consultation with the Commission."

Again "exceptional circumstances" refers to the operation of the court as envisaged in this legislation, that the court itself has the option of taking the initiative where it envisages exceptional circumstances. It may do so if it has already had consultation with the commission. I wonder if the Minister would be prepared to accept that as a feasible option for the Labour Court?

I would like to support Senator Costello. There is concern about the status of the court under the new arrangement. The court should be in a position to investigate a dispute in exceptional circumstances where it feels it necessary to do so. It would enhance the status and position of the court under the legislation.

This was an issue which we discussed. Members may have received representations on it, but I had amended it on Report Stage in the other House. It has been catered for by the inclusion of section 26 (5) which reads:

Where the Court, following consultation with the Commission, is of opinion, in relation to a trade dispute which but for this subsection it would be precluded by virtue of subsection (1) from investigating that there are exceptional circumstances which warrant it so doing, it may investigate the dispute.

I have complied with the wishes of the Senator.

Amendment, by leave, withdrawn.
Section 26 agreed to.
Sections 27 to 34, inclusive, agreed to.
SECTION 35.

I move amendment No. 21:

In page 18, between lines 24 and 25, to insert the following:

"(3) Reference of issues which are not covered by arbitration procedures for public service employees can be made to a rights commissioner, provided relevant conciliation procedures for such employees have been observed."

This amendment is somewhat on the lines of an amendment which we were discussing previously in the context of section 23. I note the response the Minister has given us in the context of section 23. However, there are problems that will exist in the interim. One of the major problems we have as teacher organisations is in the whole question of conciliation and arbitration and the limitations on that. While we can get to conciliation with the parties we are negotiating with, we find ourselves against a stumbling block in relation to arbitration on very many matters. One of the matters we have been endeavouring to get over in recent years has been the question of pensions and reduction in the age limit for the retirement of teachers. We have problems with special claims, as well.

There is a major stumbling block in the context of arbitration for us particularly in the public sector. We need some outlet. There has to be some way of getting over this block. In the meantime, before we get equal rights under the legislation, as I hope we will be able to negotiate in the not-too-distant future, I suggest to the Minister that it would be appropriate that he would provide an avenue where matters of arbitration that we do not have access to or that we cannot deal with at the present time can be dealt with. This would be one of the ways we could do it. A pertinent way would be by giving us access to a Rights Commissioner, provided all the other relevant conciliation procedures had been followed.

This really is part of the same debate we had on the earlier amendments on the access to the various industrial relations institutions. The commitments we made to try to progress this apply equally in this case. It is really the same issue. If the House wishes, I can go back over the argument, but it is the same issue. I will save the House repetition. It will form part of the discussion which we earlier agreed to undertake.

Perhaps the most pressing of the problems we are facing in the industrial relations sector is the number of issues that come up and are stymied on the arbitration side. Whether on an interim basis we could have access to a Rights Commissioner to address these problems might be something the Minister would consider.

The answer is "no". There is no way that could be done in isolation of the overall review of the conciliation and arbitration scheme. I will have to reject it.

Is the amendment withdrawn?

No, it is not.

Amendment put and declared lost.
Section 35 agreed to.
Sections 36 to 56, inclusive, agreed to.
First Schedule agreed to.
SECOND SCHEDULE.

I move amendment No.22:

In page 24, before the words "number 22 of 1941" to insert the following line:

"number 13 of 1939 Offences Against the State Act, 1939 Section 9 (2)"

What I am seeking here is that one of the measures to be repealed there would be No. 13 of the 1939 Offences Against the State Act. That is a hobbyhorse of mine about the extensive use of the Offences Against the State Act where it enters into all areas of legislation and public life, whereas the legislation was introduced as an exceptional piece of legislation at an exceptional time. It has remained, not in an emergency fashion, but operating in the normal course of events. This section makes some provision for illegal industrial action, where action taken by members in the public service can in certain circumstances be illegal. Does the Minister not consider it inappropriate that that provision should still apply in an Industrial Relations Bill at this time.

It is not appropriate to delete any of the provisions of the Offences Against the State Act which is legislation designed for national security purposes. In any event it is true to say that this section has not had any impact on the industrial relations area. It is also true that the section relates to the 1939 Act but it has not caused any difficulty and I do not think it affects us.

Amendment put and declared lost.
Second Schedule agreed to.
Third Schedule agreed to.
FOURTH SCHEDULE.

Acting Chairman

A number of amendments — Nos. 23, 24 and 25 — have been ruled out of order.

Amendments Nos. 23 to 25, inclusive, not moved.
Question proposed: "That the Fourth Schedule be the Fourth Schedule to the Bill."

I note that my amendments to increase the membership of the Labour Relations Commission have been ruled out of order. I would like to ask the Minister when he is considering nominating the two worker members to the board, bearing in mind members of the Irish Conference of Professional Services Association.

This is on the membership of the commission?

The Minister is nominating two worker members. I hoped to introduce an amendment to increase it to three to allow the Minister a balance, my amendments were not moved because of the ruling of the Cathaoirleach. I ask the Minister to keep in mind the members of the ICPSA when he makes his decision.

As the Senator will understand we negotiated the break up through the existing channels. Normally the Department of Labour consult with the Irish Congress of Trade Unions because they represent the vast number. That is not to say that we do not recognise the contribution of other bodies, but the final number of six leaves very little room for manoeuvre of any kind. I hope that organisation and others will soon be under one umbrella. If we can do that, in the short-term, it would help the position. With just two Government members now, it is a very difficult position, and I would like one of them to be female, from whatever quarter she comes. That limits my movement further. I cannot even give that commitment.

Had my amendments been accepted, it would have made it easier.

Question put and agreed to.
Fifth Schedule agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

May I thank the House and all who contributed, particularly the great number who contributed on Second Stage, and the Senators who played an active role today on Committee Stage. I have to put on record that we had more Senators in the House throughout this debate than we had Deputies in the Dáil. It is only fair to say that, while those in the Dáil were very active, a great number of Senators were involved. I appreciate the commitment and the effort put in.

This Bill carries an updating of legislation since the foundation of the State. I would like at this stage, along with thanking both Houses of the Oireachtas, to also thank the various groups that were involved in making presentations and their cases, particularly the Irish Congress of Trade Unions and the Federation of Irish Employers who, with their membership and experts and advisers, both legal and industrial relations advisers, put in a truly enormous amount of time.

I would also like to thank the officials of my Department, who have been dealing with this Bill since 1965 and who have seen a number of Ministers in successive Governments come and go. As I said earlier, it is the fact that progress under the Programme for National Recovery allowed this Bill to come forward. I am grateful for that and acknowledge the commitment to the programme otherwise another Minister would be in a position to bring forward this legislation. It was the patience and the endurance of officials, some of them literally dealt with this Bill during the 25 years' gestation, others who have dealt with it for a lengthy period, who have stuck with it and continued to negotiate. It is a major achievement for them. I want to acknowledge their outstanding commitment and the commitment of people in the House who have helped greatly. The debate and the issues that arose helped. Since it is 84 years since the last substantial Bill — it was before the foundation of the State — I hope this Bill will be a long time on the Statute Book. I am very grateful to the Seanad for their commitment and speed in dealing with this Bill.

I would like to echo the Minister's thoughts, particularly paying tribute to the Congress of Trade Unions, the Federation of Irish Employers and officials in the Department. A lot of credit must go, as the Minister indicated, to various Ministers and to this Minister, for bringing the Bill to fruition.

I would like to add my words of thanks to the officials for their extraordinary work, to the trade unions and the employers, but, most of all — I have known a lot of Ministers for Labour — I want to pay a special tribute to the Minister, Deputy Bertie Ahern, for his extraordinary way of communication. I say this with deep sincerity because, this is acknowledged right across the nation by all sections in employment and by employers. Very often a person's greatness is not acknowledged until he is dead but I want to put on the record this evening our thanks to the Minister, Deputy Ahern and all the great officials in the Department of Labour, who spent many years producing this Bill. The last legislation in this area was passed in 1906. This is an historic Bill which will have very good effects for employers and employees.

I would like to pay tribute also to the Minister for the Trojan work he has done in getting this legislation through both Houses — it has taken many months — and for getting it through the various stages of gestation with all the bodies involved — the Irish Congress of Trade Unions and the Federation of Irish Employers. I would also like to pay tribute to the officials of the Department of Labour who had to do all the background work. They have done a very good job. It is very substantial legislation. It is the first major updating of the Trade Disputes Act, 1906. That in itself is a daunting task for any Department and for any Minister to take on and bring to fruition. I thank the Minister for his courtesy and his clarity in explaining the matters raised.

I would like to join in expressing appreciation to the Minister for his epic achievement. It is the first substantive legislation in almost a century, legislation which will provide the basis for industrial relations for many years to come. Members on all sides agree that this in necessary and beneficial legislation and they appreciate the tremendous work of the officials of the Department, of the trade unions and of the many people in the trade unions who were involved. I would like to thank also the people on the employers side. A great deal of work was done there. There was much hard arguing but at the end of the day there was a recognition that all our interests are basically similar. We in this House and our colleagues in the other House have also contributed to what were extremely well informed, very positive contributions, very well argued, which we would all agree have greatly improved the Bill. Again, I want to pay a tribute to the Minister. It is part of his character that he has been willing to take on board recent amendments which will clearly improve the Bill.

I would like to join with my colleagues in thanking the Minister for the work he has done, bearing in mind that it is almost 24 hours since he entered the Chamber and he has been with us for most of our sitting since that time. It is very commendable of the Minister and I thank him. I would like to join with the others in thanking those who worked on the Bill with the Minister over the past few years and with previous Ministers, the trade union representatives, the Federation of Irish Employers and others. It is, as Senator Honan said, a very historic situation.

As somebody who waded through various measures of legislation since studying industrial relations some 20 years ago, I understand the significance of it. In future those studying and operating within the industrial relations sphere will refer to this legislation almost on a daily basis. I am happy to be here on this historic occasion as somebody involved in industrial relations. I compliment the Minister on the way he dealt with the amendments. While we did not accept everything he said we did not feel strongly enough to call a vote on any of the amendments because of his clarity in answering our questions.

As Leader of the House, having listened all of the evening to this debate and in my office I would like to say how impressed I was with the standard of debate. It is right that we should pay tribute to the officials of the Department of Labour, the trade unions, the employers, all the people who helped to make this Bill possible. Of course, we should congratulate warmly the Minister for Labour, Deputy Ahern. He excelled this evening in this House. The fact that we had no vote indicates his comprehensive knowledge of this Bill and his unassuming persuasive powers in the nicest way possible led to the situation that we had no votes, no sharp exchanges or anything like that. His explanations at all times were perfect and we should thank him warmly for that.

It is right and fitting also that we should thank and congratulate the Senators on all sides of the House who contributed in such an excellent may to this debate. As has been said, it is very important legislation and I am happy the Seanad has played its role in making it a very worthwhile debate.

Acting Chairman

On behalf of the Chair, I should like to compliment the Minister on his openness and patience which contributed to a most constructive debate on this most important piece of legislation.

Question put and agreed to.
Sitting suspended at 6.45 p.m. and resumed at 7.30 p.m.
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