Industrial Relations (Amendment) Bill, 2000: Committee and Remaining Stages.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 4, subsection (1)(a), line 3, after “procedures” to insert “(if any)”.
I am happy to see this important and desirable legislation, which deals with trade union recognition, passing through the House. This amendment relates to the core of the Bill, section 2, which allows the Labour Court to investigate a trade dispute where it is satisfied about a number of items, the first being, as section 2(1)(a) states, where:
it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures normally used by the parties concerned have failed to resolve the dispute.
The reason I am seeking to insert the words "(if any)" after the word "procedures" is that in a number of cases no such procedures are in place. The amendment seeks to make provision for the possibility that no internal dispute procedures may be available and, if so, the amendment would cover that eventuality. It would tidy up the legislation somewhat if the words "(if any)" were inserted in section 2(1)(a).
I intend to accept this amendment. With your permission, a Chathaoirligh, I will make some brief opening remarks concerning this important legislation. The purpose of the Bill is to give effect to the special fall-back provision in the findings of the high level group established under paragraph 9.22 of Partnership 2000. The provision involves the Labour Court examining matters in dispute where three specific criteria have been met. They are, one, the failure of an employer to follow the steps outlined in the code of practice on voluntary dispute resolution; two, the failure of appropriate internal procedures and mechanisms to resolve the issue; and three, the absence of industrial action during the process. These criteria are in the context of a dispute where negotiating arrangements are not in place and where collective bargaining fails to take place.
Having encouraged both sides to agree this compromise, I am obviously anxious that we should maintain the spirit and intent that existed in the high level group's report. On Second Stage, I referred to the fact that an agreed approach in resolving disputes where collective bargaining arrangements are not in place had eluded employers and unions over a very long time. I further indicated that a review process had been agreed as part of the Programme for Prosperity and Fairness. Any changes to the measured approach taken in the Bill should ideally come from that review. As the Minister with responsibility for labour affairs, I have encouraged consensus on this issue through dialogue between IBEC and ICTU. Both sides recognise that an imposed solution conflicts with the voluntary approach which is central to our industrial relations system.
The resulting report of the high level group set out a preferred approach as encapsulated in the new code of practice on voluntary dispute resolution. This fall back procedure described in the Bill culminates in a finding from the Labour Court which can be enforced through the Circuit Court. The requirement that there would be no recourse to industrial action was agreed by the social partners and is covered in sections 2 and 8 in the Bill. The Government has agreed to implement the high level group report as a total package.
Regarding the amendment, it would be usual for dispute resolution procedures to be either in written form or established through custom and practice. In a situation where the Labour Court might find a complete absence of procedures, the amendment would ensure that the court is not constrained in hearing the case. Therefore, I am happy to accept the amendment.
Amendment agreed to.
I move amendment No. 2:
In page 4, subsection (1)(b), line 7, after “1990” to insert “(or any code of practice amending or replacing that code)”.
The amendment is an attempt to improve the legislation. Section 2(1)(b) relates to cases where the court may intervene where an employer has failed to observe a provision of the code of practice on voluntary dispute resolution under section 42 of the Industrial Relations Act, 1990. The amendment seeks the insertion of “or any code of practice amending or replacing that code”.
As the Minister said, a high level group is considering this area. I am not sure if the group's report is at draft or final stage but it may contain recommendations regarding the amendment of the existing code of practice on voluntary dispute resolution under the Industrial Relations Act, 1990. The amendment makes provision for the possibility of changes in the code of practice which may emanate from this and other developments in the future. It is appropriate to include this technical amendment to take into account the possibility that the code of practice may be altered in the future.
I appreciate the Senator's point. I will outline the position because it is a matter of ensuring the procedure is right. At any time, there will be a single code of practice in force on voluntary dispute resolution. Any amending code will result in the revocation of the old code. This is the practice in legislation and the precedent. For example, when SI 146/2000 on a code of practice on grievance and disciplinary procedures was brought into effect, the code of practice on disciplinary procedures, SI 117/1996, was revoked. There is no need to include the amendment.
However, I wish to co-operate with the House and if the Senator insisted on the inclusion of the amendment, I would consider it. However, it is important to point out that there is no legal requirement for it and I would be happier if the Senator withdrew it. The position in practice is that if a new code is introduced, the old code falls.
I thank the Minister for his reply. However, the Bill provides for a specific code of practice. What will happen if an amendment to the code is made? There is no provision in the Bill to deal with a proposed variation of the code of practice. The perception is that the status quo is unalterable and I presume it would be necessary to amend the legislation in the future. If the amendment was included, it would provide for any future variation to the existing code of practice that might arise.
My difficulty is that it is unclear what would happen if a new code of practice was proposed. This section would have to be amended. My amendment would pre-empt that situation and ensure it would not be necessary to alter the legislation in the future. It would allow a more flexible approach. If alterations to the code were suggested in the future, that eventuality would be covered in the Bill.
The Senator has made a case for the amendment. We are both trying to achieve the same end and I will accept the amendment.
Amendment agreed to.
Amendments Nos. 3 and 4 may be discussed together. Is that agreed? Agreed.
Amendment No. 3 is a Government amendment and I draw the attention of the House to the fact that there is a correction in the text in line 4 where it states "accepted". It should read "excepted". It is a typographical error.
Government amendment No. 3:
In page 4, subsection (1)(c), lines 9 and 10, to delete “neither the trade union nor the employees, as the case may be, have acted” and substitute “the trade union or the excepted body or the employees, as the case may be, have not acted”.
The purpose of the amendment is to extend to excepted bodies the obligation not to act in a manner which frustrates the employer in observing the code of practice. Amendment No. 4, which is not being accepted, seeks to include the term "excepted body" in the Bill. This is consistent with the wording of section 2(1).
Is the Minister saying that his amendment is effectively a replacement for my amendment because it covers the same area?
Acting Chairman
Amendment No. 4 is an alternative.
Amendment No. 4 seeks the deletion of "neither the trade union nor the employees, as the case may be"—
—and the substitution of "the trade union or excepted body concerned has not". The effect of that amendment would be to require a trade union not to frustrate an employer in observing a provision of the code of practice on voluntary dispute resolution but to allow members of the union, namely the employees of the enterprise, to engage in the same type of behaviour. Part of the amendment proposes that an excepted body should be included in the Bill. The Government amendment will facilitate the inclusion of an excepted body in the section and clarifies the position. This amendment covers all the parties involved.
If that is the effect, I am happy with the situation and I will not move my amendment.
Amendment agreed to.
Amendment No. 4 not moved.
Acting Chairman
Amendments Nos. 5 and 6 may be discussed together. Is that agreed? Agreed.
I move amendment No. 5:
In page 4, subsection (1), lines 13 to 16, to delete paragraph (d).
Section 2(1)(d) states
neither the trade union nor the employees, as the case may be, have had recourse to industrial action after the dispute in question was referred to the Commission in accordance with the provisions of such code of practice.
These are the conditions the Minister has outlined under which the procedures, as outlined in section 2, would operate. He has indicated there are three pillars to his proposal, namely, the failure of the employer to engage, the failure of internal procedures and the absence of industrial action. This amendment relates to the third pillar which seems to make provision for a blanket ban on any industrial action during the negotiation process. This is extreme and it should be modified.
If this section is not amended and wildcat action is taken by a maverick member of a trade union or something occurs which sparks strike action, the process will stop. I have a problem with the section from that point of view. Something might happen after the dispute is referred to the commission. While it might be against the everyone's wishes and against the code of practice, it is a severe measure to cut the procedure short if industrial action of whatever nature occurs. There is no specification about the serious nature or category of industrial action.
We are concerned that a proper procedure should be put in place which would be of benefit in trade union negotiations and recognition. I ask the Minister of State to take a fresh look at this section and to see if he can modify "industrial action after the dispute in question was referred to the Commission".
The amendment seeks to remove the requirement that no industrial action be taken after the referral of a dispute to the Labour Relations Commission. A central feature of the fall back provision was the requirement that no industrial action be taken. It is against the agreement reached between IBEC and ICTU for the fall-back provision to operate if industrial action has taken place after referral of the dispute to the Labour Relations Commission. This has come from the agreement reached between IBEC and ICTU. The process depends on the parties continuing to work and not taking industrial action. I am not in a position to accept the Senator's amendment which seeks to delete this paragraph.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Acting Chairman
I wish to bring it to the attention of the House that there is a similar typographical error in amendment No. 6 to that in amendment No. 3 in that the word "accepted" should read "excepted".
Government amendment No. 6:
In page 4, subsection (1)(c), lines 13 and 14, to delete “neither the trade union nor the employees, as the case may be, have had recourse” and substitute “the trade union or the excepted body or the employees, as the case may be, have not had recourse”.
This amendment aligns the text of paragraph (d) with what we have already agreed.
Amendment agreed to.
I move amendment No. 7:
In page 4, subsection (2), line 19, after "concerned" to insert "including labour relations practices engaged in by the employer or an associated employer in another employment including an employment outside the State".
This amendment seeks to insert at the end of subsection (2), which states, "In the course of an investigation under subsection (1) the Court shall have regard to the entirety of labour relations practices in the employment concerned”, the phrase, “including labour relations practices engaged in by the employer or an associated employer in another employment including an employment outside the State”.
I tabled this amendment because of the situation in the Aldi store in Parnell Street in Dublin, although the same principle could be applied to other multinational activities. This multinational company has also opened retail outlets in Cork and Letterkenny and will open 12 or 14 stores throughout the country in the next year. While I welcome the competition provided by a wider range of semi-supermarkets and the extensive cut price range of goods made available by a German based multinational company, given that in the past almost all the multinational retail outlets were British based, the workforce in Parnell Street is on strike because of the lack of trade union recognition. Five members have been sacked because they indicated they wished to join a trade union and they have placed pickets at the store in the past two weeks.
An anomaly has arisen, which was not obvious in the past to MANDATE, in that although Aldi has a range of stores in Britain and other parts of the European Union, it does not make provision for trade union recognition anywhere outside Germany. However, it has granted trade union recognition to its workers in Germany. Neither I nor the union was aware of that. It is not satisfactory that a multinational company can apply one industrial relations law for its workers at home and another in the country in which the mother company has its base. We must try to address this anomaly.
Ireland has a greater concentration of multinational activity than any other country in the European Union. We must look at this matter from a national as well as a European point of view. However, it is another matter when dealing with Japan or the United States. The subsection states that "the Court shall have regard to the entirety of labour relations practices in the employment concerned". That is not broad enough to cover industrial relations other than those in a national context. However, we must look at the matter in an international industrial relations context in terms of employment outside the State.
I will not press the amendment if the Minister of State wants to consider how he might proceed with it in the other House. It is unfortunate we are dealing with all Stages of the Bill today because we will not get a chance to discuss it again next week. Perhaps the Minister of State is prepared to accept the amendment but, if not, he might consider the principle of an extended definition of the "entirety of labour relations practices", as envisaged in section 2(2).
I appreciate what my colleague has said and I look forward to hearing the Minister on it, but as worded it could be interpreted as including what Senator Costello seeks. On the matter of labour relations practices, "in the employment concerned" is a matter of interpretation.
I thank the Senators for their contributions. The amendment is not accepted because it would create an artificial link between Irish labour relations practices and those in other jurisdictions. That is a key point because we pride ourselves on our labour relations system. It is admired throughout the European Union in particular. Looking at the fall-back provision process in the round from the early stage at which the dispute is placed in the hands of the Labour Relations Commission's advisory service, the focus of attention is the effective resolution of the issues in dispute. This is how the high level group envisaged it, indicating that the Labour Court, when conducting its investigation into the matters in dispute, should take into account "the integrity and totality of the labour relations practices operated in the company". I would ask Senators to reflect on that.
The purpose of this condition was to underline that the absence of collective bargaining or the absence of negotiations with the trade union per se should not be seen as meaning that a valid claim exists. In submitting claims on pay and holidays, for example, a trade union would normally cite comparator firms in Ireland or Irish sectoral norms. The trade union would seek pay increases agreed under Irish national pay agreements, including the current Programme for Prosperity and Fairness. In dealing with claims, both the LRC and the Labour Court will conduct their business with a view to best practice in an Irish context, so there is that comparator aspect to this debate. Both sides are free to point to developments elsewhere and it is a matter for the Labour Court to judge the merits of such agreement.
I am not in a position to accept this amendment. The argument is that people can make comparisons with other companies from the national perspective, that there is the Programme for Prosperity and Fairness on pay issues, etc. but we should not force these kinds of international linkages. Very healthy debates are going on at European level, and I am involved at a social affairs level, about our best practice with regard to industrial relations, and I know the Senators have been following those debates. We have a particularly unique system here in Ireland and one that works well on a voluntary basis. The high level group put forward these ideas; they came from the bottom up and it was something that I, as Minister with responsibility for labour affairs, encouraged. That is where I stand.
I cannot make any commitments but in the context of this debate moving on to the Dáil, I will examine any issues that are raised here. I appreciate the co-operation of the Seanad today in that we are making solid progress. That is where my case rests and I thank the Senators for their contributions.
I am not sure that the Minister's response is adequate. If we are operating best practice, and we are operating within the European Union, it is invidious of an employer to come into this country and not operate best practice here. That is the basic principle. Also, it gives that employer an unfair advantage in terms of operating within another jurisdiction. If workers have full industrial negotiating rights in their own country, surely they should be extended where profits are going to be made in another jurisdiction, certainly within the European Union. The totality of the context which would be taken into consideration by the court should specifically address the totality of operations of a multinational company in relation to industrial relations, both at home and abroad.
Why should a company recognise best practice in its own country and be prepared to settle for something less in the country in which it establishes a business that will obviously make a good profit? This company is establishing a business which will not be just one outlet. It indicated a year ago that there will be at least 12 to 14 outlets throughout the country within the next two years. It will be a major player on the Irish retail outlet scene. The industrial dispute in the first store established here will be replicated throughout the country. Rather than having to come back to the issue at some time in the future, why should we not now expand that definition? The definition is quite good as it stands. It states: ". shall have regard to the entirety of labour relations practices in the employment concerned", but it should be expanded to include employment outside the State. The Minister said that the court may examine that matter but why should we not direct the court as to what it should examine? It should examine the totality of experience in relation to industrial relations.
I do not want to press the Minister on the matter today but I would like something other than a half-hearted response that it will be addressed in the Dáil. This is unfair to indigenous companies competing here because there will now be an extensive cut price network coming from Germany. The prices they are quoting are 30% less than those of Dunnes, Tesco or any other companies in the city. This company is currently sourcing 90% of its goods outside the country, from Germany and Britain, and it has now indicated its intention to source its goods here in Ireland. It is good to have competition in the Irish sector but we should have best practice in industrial relations. It appears to me that we are settling for something that is second best and that Irish workers can be treated less favourably than their colleagues in Germany will be treated by this company.
I agree with Senator Coghlan who referred to "the employment concerned". The case was that the employer could be regarded as the same employer whether the store was in Dublin or Germany. The wording "the employment concerned" could deal with the type of situation Senator Costello described. It effectively would be a matter for the courts to decide on that.
I will further reflect on the points raised in this debate in the time available to me before the matter goes to the Dáil, but I cannot be more specific than that.
Acting Chairman
Is Senator Costello pressing the amendment?
I do not want to put it to a vote unnecessarily but I would like to know whether the Minister is going to give it neutral consideration or some sort of favourable consideration. Am I to expect that there might be an amendment from the Minister to this effect before the Dáil?
Senator Coghlan considers that "the employment concerned" could be regarded as the same employment no matter where the store was located. I am not in a position to give any commitment vis-à-vis amendments at this stage, but I will reflect on it and seek further legal advice.
I would appreciate it if the Minister would do that before this comes before the Dáil.
Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
NEW SECTION
I move amendment No. 8:
In page 4, before section 3, to insert the following new section:
3.–The dismissal of an employee for availing of the provisions of section 2 or otherwise in connection with seeking or intending to seek redress under this Act shall be deemed to be an unfair dismissal for the purposes of section 6(2)(a) of the Unfair Dismissals Act, 1977.
This section is to try to prevent victimisation of anybody who avails of the procedures in section 2 for seeking redress under the Act. This was part of the provisions we included in our original Trade Union Recognition Bill. We feel it is desirable to include a specific protection in the Bill. It would be welcomed by employees in the event that a bad-minded employer might victimise an employee for having recourse to these provisions.
I cannot accept the amendment. The Unfair Dismissals Act already provides protection which, while not going as far as the Senator wishes, is already considerable. That legislation provides that a dismissal is deemed to be unfair if it results wholly or mainly from, first, the employee's membership or proposal that he or another person should become a member of a trade union or excepted body or, second, the employee's engaging in activities on behalf of a trade union or excepted body where the times at which he engages in those activities are, first, outside his hours of work or, second, during his hours of work if he is permitted to do so by the employer. That is the key point.
This existing protection is adequate to deal with any circumstances Senators may envisage where employees are victimised for exercising or proposing to exercise any entitlement under the Bill. The Unfair Dismissals Act has its own internal balance, to the extent that a link is drawn between trade union membership or activity during hours of work and employers' permission to do so. The net effect of the amendment would be to render a dismissal unfair if it resulted from activities on behalf of a trade union during hours of work in circumstances in which the permission of the employer had been refused or had not been sought. A move in the direction proposed would be a negative step and might open up the provisions of this new process to acts of bad faith. There is that element to altering what is effectively balanced legislation in the Unfair Dismissals Act. The key issue relates to the times at which an employee engages in these activities. The provison applies if he engages in them during his hours of work, provided he is permitted to do so by the employer.
Amendment, by leave, withdrawn.
Sections 3 and 4 agreed to.
SECTION 5.
Acting Chairman
Amendments Nos. 9 and 10 are related and may be discussed together.
Mr. Costello: I move amendment No. 9:
In page 4, subsection (1), line 29, to delete "having regard to" and substitute "determining provisions as to".
I am seeking here to firm up the legislation in relation to the activities of the Labour Court and provide that the Labour Court may make recommendations giving its opinion in the matter and, where appropriate, its view as to the action which should be taken having regard to terms and conditions of employment, dispute resolution and so on. The function of the court is to make a determination in relation to the terms and conditions of employment and to the dispute resolution procedures. Having regard to the rather weak reference to its functions, it should be strengthened and made specific. The whole intention of the legislation is that the Labour Court should be able to determine what the terms and conditions of employment will be. There is a certain ambiguity in the Bill in this respect. If the eventual outcome of the process is to enable the Labour Court to make a determination, that is what the section should say. It does not say that. Section 5 seems to be a watering down of the functions and intent of the Labour Court as provided for in section 2. I would like to see it boosted.
I cannot accept the amendment because our text is better. If a claim before the Labour Court is investigated and results in a recommendation under section 5, failing resolution the court may proceed to issue a determination under section 6. The parties have an opportunity following a recommendation under section 5 to resolve matters. They can agree to vary the terms of the court's recommendation, and the use of the word "determining" in section 5 would denote a decision which would be binding in all its provisions. This would not be in keeping with the objective of this section, which is to put a non-binding framework to the parties in dispute. It is like a momentum building up. The whole process from the voluntary code to this legal part of the process into which we are now entering is very much an evolving one. I ask the Deputy to withdraw his amendment because it is a matter of wording and our wording is better.
Amendment, by leave, withdrawn.
Section 5 agreed to.
SECTION 6.
Amendment No. 10 not moved.
Government amendment No. 11:
In page 4, subsection (2), line 41, to delete "may" and substitute "shall".
This amendment ensures consistency between section 5(2) and section 6(2). The text of section 5(2) is in keeping with the wishes of the high level group. The use of the word "may" in section 6(2) is inconsistent with section 5(2) and the proposed amendment removes this inconsistency.
Amendment agreed to.
Section 6, as amended, agreed to.
Section 7 agreed to.
SECTION 8.
I move amendment No. 12:
In page 5, subsection (1), line 12, to delete "shall" and substitute "may".
Section 8(1) states: "The Court shall cease its investigation or review under section 6 . where . at the request of the employer . the Court has satisfied itself.”. My amendment and my opposition to the section are related. This section contains a blanket ban on any form of industrial action in a dispute where an investigation has taken place. That seems too extreme. We referred to this provision at an earlier stage as well. The fact that the court shall cease its investigation if anything happens is severe in the extreme. I wonder why is it necessary to impose that blanket ban on any form of industrial action taking place during the negotiating process. This would give rise to considerable difficulties in the future where something may happen that will thwart the procedures that are at an advanced stage. The court, instead of proceeding to a resolution, determination or recommendation, will find itself simply stopping in midstream and the whole process would have to start all over again. There should be some other mechanism rather than a blanket ban on any industrial dispute that has occurred.
I know the Minister will say that SIPTU, ICTU and IBEC have agreed to this. We in this House are not a trade union or an employer's organisation. We are a body that looks at legislation that will work. We understand the difficulties. We know that legislation can be very thorny at times and that there are human responses to it. While it may look fine in a logical sense it is still accompanied by emotion and feelings because we are dealing with people's lives, careers and families. Everything is at stake when it comes to industrial relations. I do not like the use of word "shall" and the blanket ban on any form of industrial relations.
I would like the Minister to modify this provision. Naturally it is the desirable outcome and effect because no one wants industrial action, strikes or a go slow. This provision will give rise to an inordinate amount of difficulties in the future. We must remember that any negotiations that take place will be conducted in a fairly heated context. This is where trade union recognition has been denied by and large, where workers wish to join a trade union and get negotiating rights, there will be a dispute or conflict. If anyone steps out of line the negotiations will stop dead in the water according to the procedures the Minister wants to put in place and we will not be able to get a resolution. This provision will thwart the legislation in the future. Is there some way the Minister could change this provision?
I am proposing a modest amendment by asking for the word "shall" to be changed to "may". This would mean that the court may, at its discre tion, look at all the circumstances. The court may then decide that it would be appropriate for it to continue with its deliberations. It could bring in all the parties, make recommendations and decide on a desirable outcome even if there has been a breach in industrial relations. We must remember that the purpose of this section and the legislation is to step in where industrial relations do not operate and are not the norm. That is what we are trying to do. We are in a contradictory situation because this provision is stating that where an employee breaches industrial relations, when no proper industrial relations machinery exists, then we cannot continue to seek a resolution and put a proper industrial relations mechanism in place. There is a certain degree of contradiction in what we are seeking to do here. This section deserves further thought.
I am surprised that ICTU is prepared to accept this section. Does it know about this section and its specific terms? Has the organisation thought out the implications of full and stringent implementation of it? The employer will insist on it and give the Labour Court no scope for flexibility no matter what level of dispute because it is in their interest. Employers never wanted trade union recognition and they do not want a situation where the Labour Court can determine that there must be a set of industrial relations put in place.
The amendment would not be in keeping with the high level group's report but I accept what the Senator has said. I have heard Senators' comments before and I am aware of criticisms of the social partnership. Some people feel that it excludes Members of the Seanad and Dáil. The truth is that very extensive consultation led to this Bill coming into existence. As Senator Costello will be aware, issues emerged following a particular dispute and we all knew then that we had to find solutions. I would stress that this process works both ways. It puts particular responsibilities on employees and employers.
The clear intention of the high level group was that the whole process involving the Labour Court should only proceed in the absence of industrial action. The Senator correctly pointed out that we all support the absence of industrial action in these types of situations. We do not want to make matters worse, especially in tense situations.
Section 2(1)(d) makes it clear that the court's involvement must commence against a background of no industrial action. Section 8(2) makes it clear that the absence of industrial action must continue through to the completion of the procedure which takes place when the court issues its determination under section 6. I stress that the absence of industrial action was one of the cornerstones of the agreement reached between ICTU and IBEC. ICTU was very involved in this agreement. It did not just agree to this fall-back provision. The voluntary dispute resolution procedure was agreed and now we have this special fall-back provision which we are bringing into law today.
I stated at the time of the Ryanair dispute that a consensus between IBEC and ICTU would be the preferred way to deal with similar disputes in the future. There is no doubt about that. As someone who was very closely involved with the Taoiseach, the Tánaiste and others and who worked with IBEC at that time I am convinced that this is the only way forward. That consensus was reached after intensive negotiations early last year. The compromised reached places obligations on employers and employees. Employees will benefit because awards made by the Labour Court can be legally enforced on the employer. This is a very good thing for an employee. This provision goes beyond the normal voluntary tradition and commits the employer to accept a third party finding. There is an obligation on the employer and employee to adhere in full to this procedure and not to pursue the adversarial route of industrial confrontation. This is a critical element of this legislation.
That is my brief explanation why we must maintain the word "shall." This word is central to the consensus approach and the need to maintain industrial peace. These types of situations will always be very difficult disputes by nature because they will have come through a lengthy process.
Acting Chairman
Is the amendment being pressed?
I understand what the Minister of State is saying – it is easier to work from black and white positions. Industrial relations, however, like human relations, do not operate on that basis. Section 2 proposes that there would be a ban on industrial action from the point when a dispute reaches the Labour Relations Commission. That is the first stage of discussions. After that it should be possible to go the Labour Court, a more advanced stage of the machinery at which a solution would be closer. It should be left to the discretion of the court to decide if the completion of the process is merited even if a spanner falls into the works. I ask that the court be able to cease its investigation or review under section 8 and withdraw its recommendation where either the employer requests it or on its own initiative. That is not asking much and it would assist the process.
Unless the Minister of State gives me a commitment that he is willing to look at the matter in that sense – leaving the commission out of it and allowing the court to make the final recommendation – I will press the amendment. It would assist the process. It will not give an absolute denial of any form of industrial action but industrial action can take many forms. It does not always mean striking, there may be token action which the court may decide is not of sufficient weight to warrant a full resolution involving a large number of workers or a large company.
I will not insist on a vote if the Minister is prepared to take this up in a serious manner before the Bill goes to the Dáil. He should discuss this with ICTU to see if it is satisfied with the total blanket ban on industrial action being imposed under section 8. Section 8 differs from Section 2(d) in that respect. In one case we are talking about the Labour Relations Commission, in the other the Labour Court.
The Senator has made his case and while I will not accept the amendment I will reflect on the concerns expressed. There will be a review of the legislation under the Programme for Prosperity and Fairness, that is written into the agreement. That is my position and I can do no more than reflect on the points made. Any suggestions made today will be considered in the period between the Bill leaving this House and entering Dáil Éireann.
I would appreciate it if the Minister of State had another look at this. The matter will be kept under review and we all appreciate the work of the high level review group. There could be consultation with the review group about this and other matters raised today. We all want the best legislation.
I am in limbo once again. I do not know if the Minister of State is being neutral or if he is showing sympathy. We can all navel gaze for as long as we like but will it result in anything being done? The legislation could cause problems unless discretion is granted to the Labour Court. I am tempted to put this to a vote unless I receive a more sympathetic reassurance.
The Acting Chairman will appreciate that the high level review group will achieve consensus. It helped us to assemble this legislation. I will ask my officials to consult all of the relevant parties before the Bill is taken in the Dáil. I cannot offer the Senator any more than that. This is a consensus Bill based on an agreed approach. I will ask my officials to re-examine this section of the Bill in the context of the Senator's argument.
In the spirit in which the Bill is being taken, I do not want to cause any division. We support this legislation and I accept what the Minister of State has said.
Amendment, by leave, withdrawn.
Section 8 agreed to.
Section 9 agreed to.
SECTION 10.
I move amendment No. 13:
In page 5, paragraph (a), lines 35 to 37, to delete “one year from the date on which the determination is communicated to the parties” and substitute “the time specified in that determination”.
This would transfer the time specified in the determination to the court so that it could make a determination and recommend a timeframe for its implementation. As it stands, no enforcement action could be taken for a year from the determination unless it is very specific. The Bill will not be effective if a person has to wait an entire year before being able to take enforcement action. It is appropriate for the court to decide the timeframe within which the recommendations would be implemented. If there is a staged implementation, it is possible that the value of the implementation of any determination would not be felt until the last stage had been put in place.
We should be more specific, determine the timeframe and remove the provision for a 12 month period before an enforcement order can be applied for in the Circuit Court. That is far too long. We are dealing with live issues so the timeframe should be decided by the court.
The Senator is right that it would be anticipated that the employer and the trade union will resolve their differences earlier in the vast majority of cases. The imposition of a legal award is rightly viewed as a last resort in Irish industrial relations. The success of the economy is due in no small way to this voluntarist approach where employers and employees resolve the majority of their differences through direct talks or with the aid of third parties and non-binding adjudication. The provision of a lengthy period before referral to the Circuit Court will give parties a further opportunity to resolve their differences in an industrial relations, as opposed to a legal, environment.
The high level group recommended the inclusion of a one year timescale. The positions held by the Senator and me in respect of this matter are not that different. In my opinion many disputes will be resolved within the 12 month period. I accept the merit of putting in place a specific timeframe, but in my view it is longer than required. However, the industrial relations process is evolutionary in nature and the inclusion of a timeframe will help to concentrate people's minds and encourage them to find resolutions. I cannot accept the amendment because I believe the specified timeframe should be left in place.
I consider that a period of 12 months is too long because employers should not be encouraged to delay the reaching of a resolution for that length of time. The legislation should not include a specified timescale, it should be amended so that the court will be in a position to determine the period in which a resolution must be reached.
If, under section 6, the Labour Court is making a determination which is the subject of a recom mendation, having heard details of the circumstances surrounding a dispute it will be in the best position to decide on a timeframe within which a resolution must be reached. These timeframes may differ because disputes may involve small business concerns or large employers such as Ryanair or multinationals such as Aldi. Why is the Minister of State specifying that a period of 12 months must pass before the court's decision can be enforced, in light of the fact that this could frustrate the industrial relations process and prevent the reaching of a resolution to a dispute?
I reiterate the point I made earlier that the stage of the process we are discussing involves trying to find resolutions to difficult disputes and I remind the Senator that industrial action will not be taken during the specified period. Difficult disputes—
Require speedy resolutions.
Yes. However, the full 12 month period would only be required in extreme circumstances. In my opinion resolutions will be reached in the majority of cases before the 12 months expire. In our discussions with IBEC and the ICTU it was recommended that a period of one year should be set aside during which the parties involved in a dispute could reach agreement in an atmosphere of industrial peace. I accept that 12 months is a lengthy period but it was recommended by the high level group. I am, therefore, not in a position to accept the amendment.
The high level group should re-examine its position. The Labour Court may issue a set of step-by-step recommendations in respect of certain disputes and these would have to be implemented on a phased basis. In such circumstances, a 12 month period would be acceptable. However, no progress will be made until the final recommendation is implemented and employers will be in a position to delay the process for a year. In my opinion the High Court is in the best position to make a decision on the timeframe to be put in place to resolve disputes of this nature. However, if the court cannot be granted this power, perhaps the timeframe specified in the Bill could be reduced from 12 to six months. Would the high level group agree to such a proposal?
I will re-examine this matter in the context of the points the Senator has raised. I should point out that if a determination was made during the 12 month period, industrial unrest could erupt thereafter. I will consider the matter before the debate on the Bill in the Lower House because the Senator has raised a number of interesting points, particularly that which refers to step-by-step recommendations. I will ask my officials to consult again with the interested parties.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 5, after line 42, to insert the following new subsection:
"(2)Section 91(5), (6) and (8) of the Employment Equality Act, 1998 shall apply with any necessary modifications to an application under this section".
This amendment is designed to strengthen the section. The Employment Equality Act provides that where a union applies for an enforcement order the court need only be concerned with whether the Labour Court order has been complied with and not whether that order should have been made in the first instance. Employers should not be given a further opportunity to argue their cases. I urge the Minister of State to accept the amendment and insert the new subsection into section 10.
I cannot accept this amendment. The policy approach taken in the Bill is to allow for an enforcement order to be sought by a trade union in the Circuit Court. That court has inherent powers to deal with situations where employers fail to comply with enforcement orders. It would be open to a trade union to take the issue before the Circuit Court in the event of the non-implementation of an enforcement order. In the original application for an enforcement order, a trade union will submit the determination of the Labour Court to the Circuit Court. Where an employer fails to implement that order, the matter can again be dealt with by the Circuit Court.
The wording used in section 91(5), (6) and (8) of the Employment Equality Act is not in full accord with the text of the Bill. I am not satisfied, therefore, that incorporation of the text suggested in the amendment would add greatly to the operation of section 10.
Is the Minister of State satisfied that employers will not be given a second opportunity to argue their cases before the Circuit Court? If they are allowed to do so, I am concerned that the issues in respect of which disputes may have arisen could again be raised and discussed in court. These matters should be dealt with by the Labour Court and the enforcement orders it issues should be complied with. Employers should not be allowed to go before the Circuit Court and delay the resolution of a dispute. The amendment is designed to avoid that possibility.
The Circuit Court has the power to deal with an employer's failure to comply with an enforcement order. I am satisfied that the type of situation which the Senator envisages can be comprehensively dealt with by the Circuit Court. If it is necessary to carry out any further investi gations, I will ask my officials to double check the Senator's concerns between now and the time the Bill goes to the other House. I would appreciate the Senator's co-operation in this matter.
Amendment, by leave, withdrawn.
Section 10 agreed to.
Sections 11 to 13, inclusive, agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Minister. This legislation has been expedited today in the House. The Bill is very dear to the hearts of those in the Labour Party. We introduced the trade union recognition legislation and I am delighted the Minister has come around to our way of thinking.
This is worthwhile and excellent legislation, although the high level group could perhaps extend its deliberations somewhat and be a little sharper in its determinations. This is the way to proceed with business and it is desirable that the employers' body and the trade union umbrella group should get together and agree on the manner in which this business should be conducted.
I thank the Minister for his co-operation, courtesy and agreement to take on board many of the issues about which I expressed concern and to discuss them further. I also compliment his officials on their good work.
I, too, thank the Minister and his officials for their work on this very important legislation which has received a broad welcome. I join with the Minister and Senator Costello in complimenting the high level review group, ICTU and IBEC for their input. I appreciated the Minister's reminder, in the course of the discussion on Senator Costello's amendments, of all that is inherent in our unfair dismissals legislation; it is a sine qua non, so to speak. It is important that nobody is victimised. I heartily concur with the sentiments expressed by Senator Costello and I wish the Minister well with the legislation in the other House.
I thank everybody involved for their participation and co-operation in regard to this Bill. I was not present for the Second Stage debate on the Bill but I would like to know how the Cathaoirleach or the Leas-Chathaoirleach cast a spell on the Opposition, particularly Senator Costello who has co-operated wonderfully here today. We should learn from his example.
We should also be thankful for the Leader's absence.
Acting Chairman
Senator Cox was absent from the Second Stage debate because she was on maternity leave and we wish her and her new baby every happiness.
I was not on maternity leave. No such leave is available to a politician. I want to put that on record for the next time we introduce legislation.
Acting Chairman
The Senator would have to spoil things.
The issue of maternity leave was a very live issue in our ILO discussions last week in Geneva.
What about maternity leave for politicians?
Yes, for politicians too. I welcome Senator Cox back to the House. When we discuss maternity leave, we should also remember that paternity leave is an issue worthy of debate.
It is a great pleasure to see this legislation passed here today in such an efficient manner. I thank Senators for their co-operation, their amendments and their debate. I vividly remember being in the smoke-filled rooms of the Taoiseach's Department with the Taoiseach, the Tánaiste and the social partners trying to resolve the very difficult issues arising from the Ryanair dispute. The high level group, which I reconvened following that dispute, began to consider how such disputes might be dealt with. I thank the social partners, particularly ICTU and IBEC which were very closely involved in trying to find a resolution to the Ryanair dispute, a resolution which was arrived at through in-depth consultation. I also acknowledge the role played by the Labour Party which produced a Private Members' Bill on this issue, the contents of which I asked the high level group to take into account. There is always a role for the Opposition in the resolution of these types of issues.
I thank Senators Costello, Coghlan and Cox for their contributions and I thank Members in general for the manner in which this Bill has been dealt with. I look forward to bringing the Bill to the other House. I have accepted amendments today and I have committed myself to clarifying some of the issues raised. I will endeavour to do that before the Bill goes to the Dáil.
Question put and agreed to.
Acting Chairman
The Deputy Leader indicated this morning that we would review the day's business when the debate on this Bill had concluded. I call on the Acting Leader, Senator Tom Fitzgerald.
It is proposed that the House should adjourn until 2 p.m.
Acting Chairman
Sitting suspended at 12.50 p.m. and resumed at 2 p.m.
