Employees (Provision of Information and Consultation) Bill 2005: Committee Stage.
SECTION 1.
I move amendment No. 1:
In page 3, subsection (1), to delete lines 15 to 17.
I welcome the Minister of State, Deputy Killeen. I realise he has put a great deal of work into the legislation. As I said on Committee Stage, this is crucial legislation, elements of which must be examined, tweaked and perhaps changed. In a sense, the effect of the amendment is to throw out the baby with the bath water. What I want to get rid of is the last phrase which reads, "or appointed by the employer on a basis agreed with employees". People should be elected in all cases. I would be happy to accept a lesser amendment that would simply get rid of the entitlement of an employer to appoint the representative, which I consider unacceptable.
The whole context, thrust and spirit of the legislation requires an election. I do not consider it acceptable that the appointment be made by the employer. There should be an election. It may be the case that only two names would go forward for two places which means that an actual election would not have to take place but it still would be an electoral process the same way as in any other system. Moving it away from that would allow a situation to develop where unfair pressure could be put on employees to accept something with which they might not agree. It is not necessary to have that provision and in the context of what the Minister of State said in setting out the Bill on Second Stage, it is appropriate to look on this as an important election, an exercise in democracy and that this would be the only way we could move this forward.
I second the amendment proposed by my colleague, Senator O'Toole. It concerns the definition of "appointed" in section 1, which states that the word "appointed" means, "in the absence of an election, appointed by employees...". The word "employees" is plural and therefore the appointee would be appointed by more than one person, that is, by ten, 20 or 30 people. Perhaps I am missing some Jesuitical distinction between "appointment" and "election" but I do not understand how one can be appointed by 50 people without having an election. If it is intended that the appointee be appointed by election, we should surely call a spade a spade and simply provide for it. This is basically what the Bill does.
I endorse what Senator O'Toole said about one's being appointed directly or indirectly by the employer. Deciding who should represent workers is a matter for the workers alone. We accept and acknowledge that the assistance and co-operation of employers is necessary to allow an election take place in the workplace, but how the election is run and who is elected should be determined entirely by the employees.
I, too, welcome the Minister of State and the work he has done on the Bill. I apologise for some of the words I used on Second Stage, during which I criticised the Minister of State for announcing he would be tabling amendments. I have looked through the amendments and, as the Minister of State said, they are practically all of a technical nature.
Yesterday morning I was in the business lounge at Heathrow Airport, in which there were quite a few other business people, at least half a dozen of whom were reading The Economist. I looked at a particular page, at which the business people may also have been looking, and noted an advertisement from Austria encouraging businesses to set up in that country. The advertisement stated: “If you are on a quest for countries in Europe with the lowest corporate tax rate, you usually start in the outermost regions of the northwest.” Clearly, the advertisement did not want to refer to Ireland by name but alluded to it nevertheless. Those who want to set up in business question whether they should come to Europe in the first place and, if they so decide, they must determine which of the various 25 member states they should set up in. We must recognise we are in a competitive global market and that, even within Europe, we are competing with another 24 countries.
I make this point because I believe the Minister of State has listened very carefully to those who are the customers in this case. It is quite normal and logical to say "appointed by the employer on a basis agreed with employees". It is surely the correct way to proceed in this way rather than by tying the hands of potential employers by saying to them that even if they agree with their employees they are not allowed to appoint somebody. We cannot afford to adopt the latter approach. It seems the Minister of State has thought through this provision well. I urge him not to accept the amendment proposed by Senator O'Toole because his wording is exactly right.
I understand the points made by Senators O'Toole and McDowell on this amendment and understand why they have some concerns. I welcome Senator Quinn's comments on my having stated I would table technical amendments. One of the amendments is not technical but I will deal with it later. It arises from an agreement with the social partners and, as I indicated on the last occasion we dealt with this matter, the agreement is probably unique in that it may be the only agreement with the social partners regarding this legislation. This makes the job considerably more difficult.
We must have a definition of the word "appointed" because the term arises later in the Bill. Senator O'Toole acknowledged that and indicated he has difficulties with the provision for appointment by the employer. We have included the current definition because it already exists in several Acts. We expect that in many enterprises, or undertakings, as I should say in respect of this legislation, employees will choose to have the same people represent them on the information and consultation forum as already represent them at other fora. By allowing this, I hope people will embrace the concept of providing information and consultation much more quickly. In any event, the principle behind the inclusion of the reference to appointment by the employer on a basis agreed with the employees already works extraordinarily successfully in respect of other legislation.
My objection does not hinge on the employee and employer having some agreed basis for agreeing the appointment, it hinges on the fact that the agreement may not include an electoral process. Will the Minister of State or Senator Quinn state if there is a way of agreeing the appointment that would not include some form of electoral process? One elects somebody by way of putting names forward for election. If only one name is put forward an election does not have to take place, but it still involves an electoral process. If a name or names are not put forward, somebody is selected — this is what I am concerned about. I do not mind there being an agreed basis provided it includes an electoral process of some description. I will be happy enough if the legislation includes the words "democratic" or "electoral".
I am not trying to outlaw an agreement between a good employer and a workforce to the effect that they want to proceed in a different way — that is not my objective. My objective is to ensure that the agreement be made in a democratic way. I cannot think of a way other than a democratic or electoral way. If it exists, it must simply involve selecting an appointee. Perhaps I am missing the point and I therefore want somebody to outline to me the process by which an appointment could be made other than through democratic or electoral means.
Senator O'Toole has asked if I could explain a system for appointment. I recently talked to an entrepreneur who has businesses around the world and approximately 3,000 employees, a couple of hundred of whom are employed in Ireland. The entrepreneur has a choice where to go. He contrasted the manner in which Ireland enforced certain European legislation with the manner employed in Britain. It took us four months to get it through whereas it was done in three weeks in Britain. He stated an employer, given a choice where to set up in business, is much more likely to favour a state with less bureaucracy and red tape. Senator O'Toole states he is unhappy with the term "appointed by the employer on a basis agreed with employees" and insists on there being an election, but this is exactly what would cause delays, red tape and bureaucracy. The wording "agreed with employees" is exactly right. It is perfect for the occasion and the Minister of State is correct to leave it as it is.
We must acknowledge the reality that legislation will be largely troublesome in multinational corporations where there are no unions and where there will frequently be no agreed basis for appointment. In such circumstances, we must ensure employers do not pick some soft employee of their choosing in circumstances where there is really no representative way in which to deal with employees. It is all very well to say the appointment can be made by the employer on an agreed basis but the agreed basis will largely exist in companies with trade unions. Frankly, these are not the companies about which I am concerned. I am much more concerned about the sometimes quite large companies in which there is no representative basis for dealing with employees. In such companies it is essential that there be, at the very least, a guarantee that there be an election to ensure employees are represented by the person by whom they want to be represented.
I know the points Senator Quinn is making and I have heard them many times from entrepreneurs and others. It would be very helpful if the Minister of State could put on record certain facts so Senator Quinn can convey to the people he meets in future that Ireland has the best or next best strike record in western Europe. It holds this record because many people put much blood, sweat and tears into achieving it. It is only done on a basis of trust and confidence. That is the way it works throughout. The reason people set up in Ireland is that they can deal with a trade union that can, for example, listen to proposals, deal with them in a mature fashion and move forward. They are not looking to precedent established 100 years ago to determine how to deal with today's business. That is enormously important and it is crucial for outsiders to see how we do our business here.
I do not have a problem with an agreed basis. I merely question how something may be agreed that has not been determined on the basis of some type of election. How can there be an agreed basis without an election or without some representative body dealing with it? Who says it is an agreed basis? If there are, for example, 100 people in a company, how is what constitutes an agreed basis decided upon? That is the issue as far as I am concerned. There must be some democratic means for arriving at that conclusion. If everyone decides by election to adopt a system — which I do not understand — without an election, that is fine. However, I do not want this to be left open to challenge in the courts at some future date, with a particularly smart lawyer citing this legislation and saying, in effect, that there was an agreed basis — agreed with ten, four, 20 or whatever number. There is no need for even a majority. The manner in which it is written is wrong.
I do not object to the points made by Senator Quinn. I appreciate that a balance must always be found. Perhaps the Minister of State might take me out of my difficulty and insert a further interpretation of what an agreed basis means and indicate perhaps, that it must mean a natural majority. There must be some system that is democratically or electorally based. If the word "election" frightens people to some extent, I cannot do anything about that. However, there must be some democratic system for an agreed basis. Such a basis must involve finding the views of the majority of employees. I cannot envisage any other type of agreed basis and that is my difficulty. I am not trying to twist it around or to make matters more difficult for employers. I want to be able to do what Senator Quinn wants to do. I want to be able to assure employees or employers that this is fair. I just want it to be fair and to be seen to be fair, absolutely open and above board, so that nobody can argue otherwise. That is all I am trying to achieve and also that we will know that constitutes an agreed basis.
As Senator O'Toole pointed out, the word "election" frightens many people. It will be a cause of concern for some Members of the Oireachtas in approximately 18 months time. Later in the Bill provision is made — in considerable detail — for all types of terrible things such as returning officers, polls, etc.
I have two concerns. First, I am happy with the way this system operates in at least two areas of legislation, namely, the Transnational Information and Consultation of Employees Act 1996 and that which applies in respect of health and safety. What the Senators have said in a sense illustrates the enormous range of practices and of companies that operate in this country. I know Senator McDowell indicated that this is potentially troublesome on FDI companies. The sense I have, from engaging with the social partners on both sides, is that it will be anything but troublesome with the FDI companies. To be fair to them, they have engaged very strongly with the provisions of the directive and with what is required in the legislation. I do not expect that there will be any particular difficulty in that regard. However, there will, perhaps, be enterprises where a forum already exists. In order to ensure that they comply with the directive and the legislation, when it is passed, they need to have an information and consultation forum. It has worked as regards the other two areas of legislation that I have mentioned where people have been prepared, by agreement, to be nominated to do the job when candidates have not been offering for election.
If I did not have the experience of the other two areas of legislation to fall back on, I confess that I would be quite taken by the point made by Senator O'Toole. I note the point he makes as regards a majority of employees and I certainly will examine the position in that regard. My understanding is that it is inferred but if that is not the case, I will return to this matter on Report Stage.
As regards the other aspects, I am more than happy that it operates particularly well. The Senator is quite right. If one was inventing a system of social partnership, it is highly unlikely that one would opt for the Irish model. However, that model is enormously successful, particularly, as the Senator stated, in respect of the number of strike days lost, which is at a record low at present. That will hopefully continue to be the case. It is somewhat dangerous to highlight this because it might draw a mí-ádh on us. However, that is certainly the case. It has worked extraordinarily well. This legislation will have an impact, not dramatically, in a big-bang sense, but gradually over time.
I take the Minister of State's points. I will also examine how that model works in other places and return to the matter on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 2 is a Government amendment. Amendments Nos. 52 to 62, inclusive, are related. Amendments No. 2 and 52 to 62, inclusive, will be discussed together. Is that agreed?
Are a number of amendments being taken together here?
Amendments Nos. 2 and 52 to 62, inclusive.
We normally receive a list of the amendments that are being taken together. Perhaps that is what we are getting now.
Government amendment No. 2:
In page 3, subsection (1), between lines 17 and 18, to insert the following:
"‘Commission' means the Labour Relations Commission,".
Amendment No. 2 provides for the involvement of the Labour Relations Commission at an intermediate stage between the local set-up within a company for dispute resolution and the final Labour Court judgment on the issue. On the basis of my experience during the past year, I thought it advisable to provide for this intermediate step. It will help to iron out any difficulties, including those to which we just referred, that may arise as well as others that will emerge as regards further aspects of the Bill. It will be a very positive development.
I notice that amendment No. 52 is being taken with amendment No. 2. Does that mean that when the House comes to amendment No. 52, Members may not speak on it again?
That is correct. Senators may speak on amendment No. 2 and on amendments Nos. 52 to 62, inclusive, now.
Is it proposed to vote on them all separately?
Senators may vote on them separately but, for the purposes of debate, we are taking them together.
I am caught on the hop with this. I had not realised what was happening. Amendment No. 52 is in the name of Senator O'Toole. I do not quite understand why that should be taken with amendment No. 2, which stipulates that the word "Commission" refers to the Labour Relations Commission. To take amendment No. 52 with this amendment——
On a point of order, I was also unaware that these amendments would be taken together. We did not have notice of this until now and I am not blaming anyone for that. Can the House deal with amendment No. 2 now? When we reach amendment No. 52, we can take amendments Nos. 53 to 62, inclusive, with it. This would give Members an opportunity to consider what is involved. Is that acceptable to the House and to the Minister of State?
Does the House agree with that because it made a decision to take amendments Nos. 2 and 52 to 62, inclusive. Is it proposed to reverse that decision?
Is that agreed? Agreed. Did Senator Quinn wish to speak to amendment No. 2?
No, I am happy with that.
Amendment agreed to.
Amendments Nos. 3, 7, 48 and 49 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 3:
In page 3, subsection (1), line 20, to delete paragraph (a).
I will deal with amendment No. 3 first. I am trying to make life easy for Senator Quinn and the people he might meet in respect of this matter. In order to ensure that he does not have to contact every person in the shop and talk to them alone or in pairs, I suggest that much time may be saved simply by meeting the employee representatives or representative. That should be acceptable to Senator Quinn on this occasion.
In a slightly more serious vein, I am not trying to stop employers talking to one or two employees at a time. That is not my objective. However, for the consultation that is required under the Bill, as referred to in the text throughout, I am seeking that this should be done with the people appointed. That is what we have been debating for the past 20 minutes and it is the real issue in question. Otherwise the legislation will be turned on its head. What I am trying to achieve by amendment may be done in a different way. I accept that. The purpose of the amendment is not to prevent an employer from speaking to one or two employees on an issue, even one related to the matters under consultation, but to ensure that consultation under the terms of the legislation will take place with the appointed person, whether he or she is elected or, as Senator Quinn seeks, appointed by the employer on an agreed basis. Regardless of which approach is decided, consultation must take place with such persons on the basis provided for in the amendment as any other approach would undermine the legislation and fail to meet the requirements of the directive. Amendment No. 3 addresses this crucial issue.
Are amendments Nos. 3, 7, 48 and 49 being discussed together?
Amendments Nos. 3 and 7 have been tabled in my name and that of Senator O'Toole, whereas amendments Nos. 48 and 49 are in the names of Senators White, Quinn and Coghlan. The two sets of amendments pull in opposite directions, even though they address the same issue.
While I have no problem with amendments Nos. 3 and 7 being taken together, I agree with Senator McDowell that amendments Nos. 48 and 49 are different. As such, I suggest we deal with the first two amendments only.
While the line taken in amendments Nos. 48 and 49 differs from that taken in amendments Nos. 3 and 7, all four amendments address the same issue.
I support Senator McDowell's proposal to take amendments Nos. 3 and 7 together now and amendments Nos. 48 and 49 together later.
Amendment No. 7 proposes to define the word "information" as "the transmission by the employer to employee representatives of data in order to enable them to acquaint themselves with the subject matter under discussion;'". As the Minister of State will note, the amendment proposes a slight change to the current wording in that it deletes the words "one or more employees". The amendment would apply only for the purposes of the Bill and would not prevent an employer from speaking with employees, either generally or about the issues covered in the Bill. The purpose is simply to provide that consultation and the provision of information, as defined under the Bill, will take place in a particular manner. It must only take place with persons elected or appointed on an agreed basis because consultation and the receipt of information is the purpose for which such persons will be elected or appointed.
The notion that an issue would be discussed with one or more employees on a selective basis hardly reflects the spirit of the legislation, nor is it in the interests of any of the parties involved because it is divisive, sidelines people and does not address the provisions of the Bill. I reiterate that the purpose of the amendment is not to prevent an employer discussing any issue with an employee, even the matter on which consultations are taking place, but to ensure that the consultation and provision of information, as provided for under the Bill, must take place with those who are appointed, selected or elected in the manner the Oireachtas decides. As this is a reasonable proposition, I do not envisage that anyone could object to it.
With respect to my colleague, Senator O'Toole, the amendment is more far-reaching that he has outlined. My difficulty with the direct involvement scheme, as set out in the Bill, is largely based on the failure to define it, although I also have difficulty with the attempt to do two things at the same time. The Bill provides that the provision of information requirement can be satisfied in two separate ways, either by direct involvement, in other words, through direct communication with the employees concerned, or by dealing with their representatives through a forum or similar body. This, to describe it at its mildest, is an unnecessary complication. If the requirements of the directive are to be satisfied successfully, trust is to be built and highly sensitive information imparted to employees to enable them, through changes in work practices and so forth, to try to prevent risk to employment, the process must involve face-to-face meetings in a forum with representatives of employees. In addition, the forum should meet much more frequently than twice a year, the minimum provided for in the standard rules. This, however, is another issue to be discussed later. The requirements cannot be satisfied simply by sending an e-mail twice a year, a practice which, on the face of it, would be sufficient to satisfy the requirements of direct involvement. If information is provided by e-mail, newsletter or other printed material, it cannot be important or sensitive. As such, this option would hardly satisfy the requirements of the directive. To build on trust employers must, at a minimum, meet employee representatives face to face. In essence, the amendments seek to undermine, if not eliminate, the direct involvement system. While I do not have a problem with people receiving information directly from employers, this practice should not be deemed sufficient to satisfy the requirements of the directive.
I remind Senators that the legislation is entitled the Employees (Provision of Information and Consultation) Bill 2005. The Bill covers solely the provision of information and is unrelated to negotiation. The danger is that the amendments will lead to a significant increase in bureaucracy. Given the possibility that only one or two employees will be in interested in receiving information on an issue, the current wording is appropriate. Any additional provisions would introduce red tape and make good relationships more difficult to maintain. Good employers already provide information to employees and do not need further regulation in this area. The Minister of State is correct, however, to ensure Ireland complies with European regulations in this area in a manner which allows companies to operate competently. He is correct to leave the wording as it stands.
The definition in this instance is adapted from the directive under Article 2 and seeks to meet the requirements on its transposition. It also takes account of current practice in this area. As Senators O'Toole and McDowell indicated, they do not wish to diminish the current level of contact between employers and employees. In some instances, these contacts constitute good practice, while in others they may not be sufficient to meet the terms of the directive because it includes a requirement that employees be in a position to present their opinions and have them heard. There is, therefore, a two-way process, even if it applies only to an individual employee or small group of employees.
A significant number of companies have arrangements in place which are likely to meet the requirements of pre-existing agreements. Many of these companies have been to the fore in exchanging information with their employees. We should value good practice in this area and avoid removing from employees a facility they greatly value. Senator O'Toole pointed out that this is not his intention but my advice is that failure to include this provision would make it difficult for current good practice, some of which could be developed, to continue. While I understand the Senators' points on consultation with representatives of employees, we are trying to transpose the provisions of the information and consultation directive. We already have good practice in some instances, while in others, such as the cases about which the Senators expressed concern, practice must improve if the terms of the legislation are to be met.
I am taken aback slightly by the reasons set out for rejecting the amendments. Amendment No. 48 tabled by Senators White, Quinn and Coghlan seeks to insert a requirement that employees "be informed and consulted through their representatives (as defined under this Act)". I am happy to support this amendment because it achieves my objective. I am not trying to exclude anything from happening. We are only talking about the purposes of the Act here. We are only talking about what is happening around the terms "consultation" and "information", which are required under the Act. I am happy to go along with what is being suggested in another part of the Bill by Senator Quinn, to use the representatives who are being selected under section 1.
While I am not asking the Minister of State to anticipate his views on amendment No. 48, am I to take from this that he will be supportive of that amendment or that Senator Quinn and Senator White will be taking an opposite view on that amendment? One can see why they are two separate issues and why we did not want to discuss them altogether, but this is certainly an instance of being betwixt and between. We need to know where we stand. How is it that the representatives are useful at one point but a danger at another? It seems to me they are useful on both occasions.
I am not quite sure I understood the Minister of State. We all are in favour of good and enhanced practice but what does this mean? Is the Minister of State saying it is sufficient that a newsletter or an email is sent out twice a year? That is hardly what the directive intended.
The Minister of State referred to Article 2 of the directive. I thank him for providing me with a copy of the directive yesterday. Article 2 says nothing of any meaning. It just gives enormous scope to member states to define almost everything they want to define, including employer, employee, employees' representatives, etc. It allows us to do what we want and let us not suggest that we are constrained by the directive in how we choose to make it work. In fact, the directive does not make any reference to direct representation or dealing directly with employees. It is quite clear, from reading the directive, that it is intended or expected that member states will provide for a system of representation. That, in essence, is the thrust of this amendment and a number of other amendments in my name.
Consultation is not meaningful unless it is dealt with on a face to face basis. The Minister of State has not answered that point other than to suggest that good practice could lie elsewhere. Employees must sit down in a room within four walls and deal, on a confidential basis if needs be but on a basis of trust, with employees or their representatives. We are saying it should be dealt with on a representative basis and that is the minimum required in order to satisfy the directive. If the Minister of State is stating that it is sufficient to provide a newsletter twice a year, he might put that on the table and say so. I do not accept that such is the case.
There is a difference of opinion here between my colleagues and myself. Only 25% of private businesses are unionised. If we are not careful, the trend will almost be to state that one must have a union. It is not necessarily traditional. There is a voluntary system which has worked well in Ireland. The number of trade union members as a percentage of the total workforce has reduced considerably in recent years. That is a trend which some may not like. It may be a trend with which employees are happy because they benefit from not incurring the cost if they do not wish to do so.
However, that is not a matter in which we should be involved. We must be careful that we are not automatically stating to potential employers that they must have representation in this area.
The Minister of State's wording is correct. It positions collective representation by trade unions or by their nominees as a mainstream method of information and consultation. We are not talking about negotiation here. It would be wrong to force employers in that direction when there may be no need whatsoever for it. On this basis, the wording is correct and we should not change it. It will be helpful to the traditional voluntary method of information, which, I agree with Senator McDowell here, most good employers have used for years anyway.
There may be a misunderstanding on the part of Senator Quinn. This has nothing to do with trade unions. I am not talking about trade unions or unionised workplaces here. I am simply stating that under section 1(1) the Bill defines appointed representatives of employees, the same people who are referred to in amendment No. 48 of Senator White and Senator Quinn, which inserts "to be informed and consulted through their representatives (as defined under this Act)". It is not referring to the Trade Union Acts. It is simply referring to the people who have been selected, appointed or elected by the employer depending on whichever way it is done under section 1(1). All I am stating is that they should not be excluded. For the purposes of this Act, they must be the ones who are involved in the consultation and receive the information. That does not block the employer, if he or she wishes to do so, from speaking with individuals or groups. If for the purposes of this Act it is okay to talk about the representatives under amendment No. 48, I do not see why it is not okay for me to talk about the same representatives. It is not about outside people at this point. I am talking about the people who have been selected under section 1(1). Nobody has asked what is wrong with doing this. It certainly does not stop anybody from doing anything they want to do but it is a requirement that the people who have being selected to do a job are allowed do it.
I say the following with absolute clarity. This is not blocking anybody. This is not taking in anybody from outside. This is simply saying that having gone through the process of selecting, electing or appointing people on an agreed basis, they are then part of the consultation and the information flow. Why is that not acceptable? I seek a direct understanding of the problem being created here. If we go the first step, why not the second step, which does not block anybody from talking to anybody and which only means for the purposes of the Act?
The only change Senator O'Toole is suggesting, in amendment No. 3, is the removal of the words "one or more employees". That, one or more employees, is exactly as it should be and is what is intended. That is how it should remain.
There is some confusion arising from the fact that we are dealing with a definition of consultation. To deal with the question raised by Senator McDowell first, the definition of consultation means an exchange of views and establishment of dialogue between the three. It means much more than circulating a newsletter or sending an e-mail. It is a quite different process from the fear expressed by Senator McDowell.
To respond to the point made by Senator O'Toole, in this definition section I seek to provide for a choice. Subsequently there are situations where the trigger mechanism, which Senator O'Toole will oppose strongly and which brings a different kind of process into effect in some instances, comes into play and where Senator Quinn will state strongly to me that the trigger mechanism is set at far too low a threshold. There will be strong disagreement when we come to that stage but that is irrelevant in this context of the definition of "consultation". It would be entirely wrong to preclude employees, who currently have an arrangement in place or who might want in the future to have an enhanced arrangement in place to deal directly with their employers, from doing so. My understanding is that if it is not included in the definition, it is effectively excluded.
There are subsequent provisions in the legislation which will deal specifically with cases where representatives come into play. Obviously since we have left the choice "the employees' representative or representatives" here, we provide for that as well. In fact, the fears of the Senators on the inclusion of "one or more employees" are misplaced in this instance because we are dealing with the definition. I will disagree with the same point when they make it in the case of the trigger mechanism at a later stage in any event.
The belt and braces approach. It is not my intention that consultation, discussions or any engagement between an employer and one or more employees should be excluded. What the Minister of State said is new to me. He stated that if it is not included there, it is effectively excluded. I want more information on that. I would trust the Minister of State's view on it but I can assure him that I would not have tabled the amendment if I believed that were the case. I do not believe that is the case. If a Bill is silent on a matter, I cannot understand how that means it is excluded. I would like to get the information which brings him to that conclusion and we can revisit the matter on Report Stage. My view is that being silent on something does not necessarily mean it would be excluded. I would not want it to be excluded. The greater the flow of information between employers and employees, the better, whether it be between two people, groups or representatives.
What sort of good practice would be excluded if we removed these words?
There are two meanings that can be taken for the word "excluded" and Senator O'Toole seems to have the opposite view to me. It may not be excluded in terms of being allowed as a practice, but it would be excluded as an option under the provision of information and consultation for the purposes of the directive on the legislation. This is different from being excluded in a general sense, which appears to be the fear of Senator O'Toole.
What sort of practices are involved?
Practices such as might be agreed. We are required to provide for an exchange of views and establishment of dialogue between any of the three.
Would it be fair to say that if we removed the words, one would be required to deal with representatives in order to satisfy the directive?
That might well be the case and we will come to this when dealing with the trigger mechanism.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 3, subsection (1), line 32, after "employment" to insert the following:
"(excluding an individual supplied for the temporary use of an employer by an employment agency within the meaning of the Employment Agency Act 1971)".
Senators Coghlan, White and I have proposed a number of amendments. I feel strongly about this amendment because it seeks to define more precisely who exactly is an employee under this legislation. Many companies rely from time to time on temporary staff supplied to them by employment agencies. Over the years, particularly coming up to Christmas or at similar times, my company would get people to come in and work for a short period. It is now an established principle of employment law that these temporary workers are regarded as the employees of the employment agency and not of the company that makes use of their temporary services. This principle should be followed in the Bill and it is for that reason I propose this amendment under which temporary employees will enjoy their rights of information and consultation with their actual employer, the agency, and not the company for which they happen to be working on a temporary basis. The amendment is understandable and logical and I do not foresee any difficulty with it. It does not suggest these temporary employees are not entitled to consultation, but it should be with their employer, the agency, and not the company that has taken them on for a temporary period.
The amendment makes sense because we are dealing with information and consultation. If someone from an employment agency is working with a company on a temporary basis for a month or two, that person will not have the same attachment to the business. Whether they want the information, the amendment makes sense. These people are transient and are engaged by the agency rather than the firm to whom they are assigned for a temporary period. We should be able to agree on this.
My experience is that a person who is recruited through an agency and who becomes a full contractual employee is different from somebody sent for a temporary period to a company. It does not make sense that temporary agency workers would be seen as employees of a company as it is the agency that is their employer. This is important.
The definition of employee in the Bill does not exclude temporary agency workers. My understanding is that an agency worker must have a contract of service with the employer for the legislation to apply to him or her. Effectively, there is an existing definition in this area which states that the worker is the employee of the company under whose direction and control he or she is working. We already have definitions in place, for example, with Revenue, the Department of Social and Family Affairs and elsewhere. In this instance it is clear, although I may have difficulty explaining it, that there is a distinction between a contract of service and a contract for service. This is understood across different areas of employment legislation. The situation under this legislation is that if employees are under a contract of service, they are entitled to this information and consultation from the company. In the event they are not, they are entitled to it from the agency that employs them.
I am not sure I fully understand the difference between contract of service or contract for service. Let me give an example. In the business with which I am associated we often need temporary employees, such as security people over the Christmas period. I am not sure if these people have a contract of service or for service. Am I to understand that a person who got a job through a contract agency but who is working for a few days or weeks for a company is entitled to the same amount of information and consultation as a full-time employee? If that is the case, I am unhappy with the legislation. It is different if the person comes in as a permanent employee. Could the Minister of State explain the situation in words I can understand?
Or words I can understand. The key requirement is that the person under whose direction and control the person is working is obliged to provide the information and consultation, as is the case, for example, with Revenue and the Department of Social and Family Affairs. Who the employer is depends on what exactly has been agreed between the individual, the agency and the undertaking with regard to matters such as remuneration, performance of the work, discipline and dismissal.
What I want to ensure under this legislation is that in the event that all the other criteria are met, that either the employer at the place of employment or the agency is required to provide information and consultation under this legislation. The legal distinction that is made on these criteria is whether the person is working on a contract of service or for service. There is considerable case law in this area and this is already established practice. I am not in a position to elaborate further than this. We are at a fairly advanced stage with regard to updated temporary worker legislation. This may well be one of the areas amended or further elaborated on under that legislation.
I will not press the amendment now, but will examine what the Minister has said so as to understand it better. If necessary, I will raise it again on Report Stage.
Is it agreed that amendment No. 4 be withdrawn?
No, I want to see the change made. The word "employee" here could include an individual employed on a temporary basis for one or two weeks while the legal relationship is with the agency. The situation is different if the employer sets up a contract with a person who has been recruited through an agency. However, if a person is employed in a temporary position for just one or two weeks, the agency that sent them is the legal employer. When an employer recruits an employee from an agency he or she sets up a contract with the person before they are fully engaged, but it is totally different for someone coming into a company on a temporary basis.
Senator White is right in this instance. We have to make a distinction in the case of a person who is engaged by an employment agency on a very temporary basis. As such a person does not belong to the company to which he or she is sent, he or she will not have a feeling for the company or its business. As Senator Quinn has explained, temporary agency staff are sometimes recruited on security detail for a week or two at Christmas. With all due respect, the Minister of State should acknowledge that an important distinction needs to be made. He has said he will deal with the matter in due course in the context of other legislation, but he should take the opportunity presented to him in this Bill to ensure that he stands his ground in the manner outlined by Senator White.
I would like to withdraw my comments of some moments ago. It is obvious that it was not appropriate for me to withdraw an amendment that is in the name of other Senators as well as in my name. I ask the House to ignore what I said about the amendment, about which Senator White feels very strongly.
I ask the Minister of State to reconsider this important matter in advance of Report Stage.
I imagine that an employee in the category mentioned by Senators White and Coghlan is likely to be recruited on what is termed a "contract for service", in which case responsibility would lie with the agency. If the amendment before the House is accepted, it will preclude all employees placed by an agency with a company from getting information from that company. People may be placed with a company for a period of two years or considerably longer in some instances. It would be entirely wrong to exclude such people from the right to information and consultation that will be given under this Bill to their fellow employees who are working for the same company. I am not prepared to exclude them in that way. If people are operating under a contract of service, they are included in this Bill under the main employer. If the definition of "contract for service" applies to them, as it does to the employees mentioned by Senator Coghlan who are employed for a week or two, I am perfectly satisfied that the agency is responsible. I am not prepared to treat differently people who have been working for a company for a long time, and who meet the terms of a contract of service, just because they happen to be agency workers.
The Minister of State's explanation, which is entirely clear, should be taken on board.
We should give further consideration to this matter off-site. I accept the Minister of State's comments about a person who is employed under a two-year contract. It would not be sensible to give the same rights to a person who is employed under a one-month contract. I will not press the amendment. I ask the Minister of State to re-examine this complex matter.
Perhaps the Senator should press the amendment, which refers explicitly to employees supplied for the temporary use of employers.
I will not press the amendment. I will discuss it with the Minister of State off-site.
The Senator is walking away from it.
I am not walking away from it.
I will withdraw the amendment because the Minister of State has given a better explanation of the difference between a "contract for service" and a "contract of service". Perhaps he can reflect on the matter before Report Stage to confirm that his interpretation of the matter is exactly correct. Senator White and I can also consider our approach to the matter before Report Stage.
Do the Senators agree to withdraw the amendment?
I reluctantly agree in this instance.
Amendment, by leave, withdrawn.
As amendments Nos. 5 and 6 are related, they may be discussed together by agreement.
Government amendment No. 5:
In page 4, subsection (1), line 4, to delete "to it".
Amendments Nos. 5 and 6 are technical amendments which have been tabled on the basis of the advice of the Office of the Chief Parliamentary Counsel.
Amendment agreed to.
Government amendment No. 6:
In page 4, subsection (1), line 8, to delete "to it".
Amendment agreed to.
Amendment No. 7 not moved.
Government amendment No. 8:
In page 4, subsection (1), line 18, to delete "of this Act".
This technical amendment proposes to delete the reference in this section to the superfluous phrase "of this Act".
Amendment agreed to.
I move amendment No. 9:
In page 4, subsection (1), between lines 25 and 26, to insert the following:
"‘trade union' means a trade union which is the holder of a negotiation licence under Part I of the Trade Union Act 1941;
‘undertaking' means a public or private undertaking carrying out an economic activity, whether or not operating for gain.".
The purpose of this amendment is to add precision to the legislation. I propose that a definition of "trade union" be included in the Bill, as trade unions are referred to on many occasions in it. We all know what a trade union is, but it should be formally defined in this instance. There is nothing contentious about the definition I propose. I also propose that we formally define the word "undertaking", which, unlike the term "trade union", is highly ambiguous. It is clear that we need to define precisely what is meant by an "undertaking" in so far as it is used in the Bill.
Does the Minister of State intend that the Bill will apply to the public sector as much as it will apply to the private sector? I believe it should apply equally in both instances. Therefore, we should define the word "undertaking" accordingly. Equally, does the Minister of State intend that the Bill will apply to not for profit organisations as much as it will apply to commercial undertakings? As I think it should apply equally in both cases, I feel that the definition of the word "undertaking" should be inclusive of not for profit organisations. I am familiar with the joke about non-profit making organisations — they did not start out that way, but they finished up that way. The term "not for profit", rather than "non-profit making" is used to refer to organisations which do not seek to make profits. We need to define the word "undertaking", which causes me some concern. I would like the Minister of State to put my mind at rest about his intentions in that regard.
Senator Quinn's argument makes total sense. I am sure Senators McDowell and O'Toole, who know more than me about such matters, would not disagree with the proposed definition of a "trade union". Senator Quinn is right to ask for a definition of the word "undertaking" to be included in the Bill. While it is not defined in the Bill, I understand the word is defined in the relevant EU directive. I am not familiar with the EU definition, but I ask the Minister of State to confirm that it exists. I agree with Senator Quinn that the definitions in question are needed.
My experience suggests that there is a need for clarity in legislation about the meaning of a "trade union" and an "undertaking". This amendment has been proposed because there is a need to fill the gaps in the Bill's definition section and make matters clearer.
I do not have any difficulty with the proposed amendment. I would like the Minister of State to outline why he has chosen to use the term "undertaking", rather than the term "establishment", in this legislation. The relevant EU directive allows member states to choose between the terms. Having read the directive's definitions of both terms, the distinction is not terribly clear to me. It appears that the definition of "establishment" is somewhat broader — it certainly involves organisations other than those which are involved in economic activity, regardless of whether they are doing so for financial gain. When the Bill was discussed on Second Stage, Senator Leyden asked whether a public hospital, for example, would be covered under its the terms. Perhaps the Minister of State will share his thoughts on the matter with the House.
I would like to respond to Senator McDowell's query before replying to Senators Quinn, Coghlan and White. The EU directive being transposed in this legislation allows for either of the terms "undertaking" and "establishment" to be used. The vast majority of those who contributed to the process of consultation on the matter favoured the use of the term "undertaking". It was more or less agreed before I became involved in this matter that the term "undertaking" would apply if 50 or more people were employed and the term "establishment" would apply if 20 or more people were employed. The term "undertaking" found favour when the time came for the choice to be made.
The amendment before the House contains two separate provisions. I see some merit in the proposal to include in the Bill a definition of the term "trade union". I am prepared to examine the matter in advance of Report Stage to decide whether such a definition should be provided for. It has also been proposed to define the term "undertaking" in this legislation. It is understood that if a term which appears in the directive also appears in the legislation, the same meaning is ascribed to it. I have been advised, therefore, that it would be superfluous to include a definition of the term "undertaking" in the Bill. I have said that I will examine the proposal to include a definition of the term "trade union". I will also examine the other half of the amendment, which proposes the insertion of a definition of the word "undertaking", but I am not as well disposed towards it.
I would like an answer to my queries in respect of this amendment. I was impressed by the Minister of State on Second Stage because it was clear that he had done a substantial amount of work on the Bill. I criticised him when he said he intended to table some amendments to the Bill on Committee Stage, but it is clear today that almost all of his amendments are technical in nature. The amendment I have moved is quite important. We need to know whether the Minister of State intends that the provisions of the Bill will apply to profit-making undertakings as well as not for profit organisations. Does he intend that public sector and private sectors undertakings will be affected? I have proposed this amendment because my definition of the term "undertaking" will clear up the matter. I agree with the Minister of State that it is accepted that a "trade union" is "a trade union which is the holder of a negotiation licence under Part I of the Trade Union Act 1941". The Minister of State does not have any problem with that and I do not think anyone else will. However, it is important that we know whether it is a public or private undertaking and whether it applies to those acting in pursuit of profit.
I welcome the amendment. I compliment Senator White on picking up on the point. With regard to the term "undertaking" being used in the directive, it is not unusual for terms to be taken from directives and transposed into legislation. I do not have any difficulty with this. However, it is important, as Senator Quinn stated, that the Bill should relate to public and private undertakings. The House owes a debt of gratitude to Senator White for picking up on this important issue.
The Senator is speaking tongue in cheek.
No, I am very serious. It is the kind of thing that will also be useful to the Senator in the Lower House.
I do not want to be unduly harsh on the Minister of State but it is frustrating when a question in asked and the answer is "It is this way because other people have agreed it". I am asking why the Minister of State chose to use the term "undertaking" rather than "establishment" in the Bill. Perhaps the social partners have agreed on this but I would like to know the Minister of State's view.
It is fairly solid ground in the sense that, unusually in regard to this legislation, the issue is not one that is causing any difficulty between the social partners. Ultimately, the choice had to be made between the words "undertaking" and "establishment".
Is the word "undertaking" more restrictive than that of "establishment"?
That is not my sense of it. I understand that most of the submissions came down strongly in favour of the term "undertaking".
I am satisfied that, in transposing the directive, it is legal to use either term. The view taken was that "undertaking" has, if anything, slightly more merit than the alternative. There was no clear distinction between the two terms but a choice had to be made. It was made mainly on the basis that most of the submissions favoured it.
It would help if we understood the distinction, which is not clear. I get a sense that the term "establishment" would infer a broader definition than that of "undertaking". If so, why did the submissions favour the term "undertaking"?
I should have explained that point. The definition of "undertaking" is a legal entity, such as a company, partnership, co-operative, trade union, friendly society or charity. The definition of "establishment" is a distinct physical entity, such as a factory, branch office or retail outlet, which is part of a larger legal entity. An undertaking is a familiar concept in Irish law and is used in the Competition Acts. For example, an undertaking with 400 employees might have many branch offices or parts, each of which would be an establishment with fewer than 20 employees. In that instance, the undertaking has a requirement under the legislation which its many establishments might not have had.
I did not understand that the distinction was as meaningful as that. Is the Minister of State suggesting that, for the sake of argument, the definition of "establishment" for a major supermarket chain would apply to each individual supermarket whereas the definition of "undertaking" would apply to the supermarket chain as a whole. Is that reasonable?
That is my understanding. If it is not the case, I will discuss the matter further with the Senator on Report Stage.
The other part of the argument concerns whether the definition needs to be included in the legislation as well as in the directive. However, whether it is included will not make any difference to the distinction between the terms "undertaking" and "establishment". I am advised that neither does it make a difference with regard to the application of the term under the Act. The term is also used in the directive and, unless the context requires otherwise, it has the same meaning. I will revisit the matter on Report Stage.
Perhaps I have unwittingly wandered into an area which is more interesting than I thought it was. I would have thought it was best practice to deal with employees at workplace level. For example, the staff working in factory A, located in Dublin, should get information relevant to them and this should be dealt with by their employers in their place of work, whether the factory is owned by the same company that owns factory B, which is located in Cork. In other words, the workplace is optimal. The Minister of State seems to suggest that employees should be dealt with in the context of the whole company, which may own factories all over the country. To use the European terminology, a bit of subsidiarity would have done no harm.
We will return to this matter later because one of the proposed amendments essentially seeks to do what Senator McDowell suggests. While it is my view that the Bill already deals with this issue, we can argue the point later. There is provision for this to happen. Had the "establishment" definition been accepted, a large bank, for example, might have many branches with fewer than 20 employees while being well within the limits corporately. However, the bank would have requirements under the Act, given the definition based on "undertaking", which it would not have had in many of its branches in light of the definition of "establishment". That is my understanding of how the alternate possibilities might have worked. In the event of different provisions being required in different sub-areas of an undertaking, this is provided for. We will have a battle about this point because the proposers of the amendment will not be satisfied that it is sufficiently dealt with in the Bill.
I do not fully understand the Minister of State. My two points referred to private and public undertakings and not-for-profit organisations. Is it the Minister of State's intention that the Bill would apply in these two cases?
That was the second point I made. With regard to the definition of "undertaking", regardless of whether it is only in the directive or in the Act or both, it is the same definition. On the basis of the definition, it is a matter of determining whether a company or undertaking comes within the terms of the requirement. As the definition includes the phrase "whether or not operating for gain", it would be likely to include rather than exclude undertakings in the vast majority of cases.
We need clarity. I thought the Minister of State would be quite clear and would provide a yes or no answer to my query. On the basis of what he said, I think the Bill would be improved by the amendment. I do not know why my colleagues in the House should not propose that this item should not be put off until Report Stage. I wait to hear the views of Senators White and Coghlan.
I agree with Senator Quinn on this point.
Regardless of whether the definition is in the legislation, which is the only effect of passing this amendment, it remains the same definition. The clarity sought by Senator Quinn will not, therefore, arise from including the amendment in the legislation per se but from the interpretation of the definition. It is the same definition in both cases. This is a slightly different matter and there might be some merit in pursuing it further on Report Stage.
Amendment put.
The Committee divided: Tá, 20; Níl, 26.
Tá
- Bannon, James.
- Bradford, Paul.
- Browne, Fergal.
- Burke, Paddy.
- Burke, Ulick.
- Coghlan, Paul.
- Coonan, Noel.
- Cummins, Maurice.
- Feighan, Frank.
- Finucane, Michael.
- Hayes, Brian.
- McDowell, Derek.
- McHugh, Joe.
- Norris, David.
- O’Meara, Kathleen.
- O’Toole, Joe.
- Phelan, John.
- Quinn, Feargal.
- Ross, Shane.
- Ryan, Brendan.
Níl
- Brady, Cyprian.
- Brennan, Michael.
- Callanan, Peter.
- Dardis, John.
- Dooley, Timmy.
- Feeney, Geraldine.
- Fitzgerald, Liam.
- Glynn, Camillus.
- Hanafin, John.
- Kenneally, Brendan.
- Kett, Tony.
- Kitt, Michael P.
- Leyden, Terry.
- Lydon, Donal J.
- MacSharry, Marc.
- Mansergh, Martin.
- Minihan, John.
- Mooney, Paschal C.
- Moylan, Pat.
- Ó Murchú, Labhrás.
- O’Rourke, Mary.
- Ormonde, Ann.
- Phelan, Kieran.
- Scanlon, Eamon.
- Walsh, Jim.
- Walsh, Kate.
Tellers: Tá, Senators Coghlan and Quinn; Níl, Senators Minihan and Moylan.
Amendment declared lost.
Question, "That section 1, as amended, stand part of the Bill", put and declared carried.
Section 2 agreed to.
SECTION 3.
As amendment No. 72 is consequential on amendment No. 10, the two will be discussed together. Is that agreed? Agreed.
Government amendment No. 10:
In page 5, subsection (2), lines 11 to 13, to delete "Protection of Employment Act 1977 (Notification of Proposed Collective Redundancies) Regulations 1977 (S.I. No. 140 of 1977), the".
These amendments are necessary to ensure that the correct reference is made in the Bill to the Protection of Employment Act 1977, as amended. On the advice of the Parliamentary Counsel, the regulations named in the proposed deletion do not amend the Protection of Employment Act 1977, so the amendments are required for technical reasons.
The Minister of State is a reasonable man. We will agree to his amendment.
Amendment agreed to.
I move amendment No. 11:
In page 5, subsection (2), between lines 29 and 30 to insert the following new paragraph:
"(e) the provisions and procedures contained in the Industrial Relations (Amendment) Act 2001 and the Industrial Relations (Miscellaneous Provisions) Act 2004.”.
This may simply be an inadvertent omission from the list of legislation but the Minister of State will agree that everything in this Bill must be without prejudice to the Act — namely, the Industrial Relations (Miscellaneous Provisions) Act 2004 — to which I referred in my amendment. It was a difficult item of legislation in respect of which all the social partners had great difficulty in coming to agreement. No one would want anyone to be in a position to play games with the Act at this stage or to use the provisions of the proposed legislation as a method of not becoming involved in collective bargaining or not dealing with the issues pertaining to that Act. In particular, as other legislation is listed in the Bill, it must also be without prejudice to that Act. Perhaps the Minister of State will accept that the Bill is also without prejudice to the Act.
The purpose of section 3(2) is to comply with Article 9 of the directive which states that it shall be without prejudice to certain directives that deal, inter alia, with information and consultation to employees in certain situations, such as, for example, collective redundancies or transfer of undertakings in European works councils. It specifically states that this implementation must not lead to any regression in respect of the existing protection of workers in the areas to which it applies, that is, to information and consultation. Accordingly, any obligations to inform and consult under this directive are in addition to existing obligations in respect of information and consultation under other legislation.
The Industrial Relations Acts 2001 and 2004 provide for issues completely distinct from information and consultation. The legislation of 2001 and 2004 was enacted as a result of commitments made under the social partnership agreements. Hence, the point is that the nature of the legislation listed in section 3(2) is that which has an information and consultation element to it whereas the two additional Acts proposed by the Senator do not have an information and consultation content. I am advised that they are not relevant to this Bill.
I appreciate the clarification provided by the Minister of State. Am I correct in saying that nothing in the Bill can in any way prevent, interfere with or interrupt the operation of the 2001 and 2004 Acts? In other words, the proposed legislation cannot be used to delay, interrupt, or prevent an engagement in any way under those Acts? That is all I am trying to establish. If the Minister of State gives me a commitment that this interpretation is correct, I will be happy to withdraw the amendment,
I am assured that this is the position.
Amendment, by leave, withdrawn.
Section 3, as amended, agreed to.
Section 4 agreed to.
SECTION 5.
I move amendment No. 12:
In page 6, subsection (1), line 2, to delete "a relevant workforce threshold" and substitute 2 "‘the relevant workforce threshold' set out in section 4(2)".
Again, I am seeking clarity. The section I am attempting to amend uses the phrase "in determining whether employees are employed in an undertaking that meets a relevant workforce threshold". I want to be assured that this refers to section 4(2). The amendment aims to ensure that it does so. I want to insert a reference to section 4(2) to confirm that it is being referred to. Can the Minister of State accept the amendment on that basis or would it cause difficulty to do so?
My name is also on the amendment and my motivation was somewhat different, inasmuch as I specifically seek to effectively remove any reference to thresholds in section 11. Section 11 effectively also has a threshold which is required to get around the direct system of providing information. Since the thrust of some of the amendments in my name and that of Senator O'Toole is to eliminate that way of doing things, there is no need for any reference to thresholds such as those listed in section 11.
If the amendment was to be accepted, its impact would be to replace the word "a" with the word "the". The reason the word "a" has been used is that three different threshold levels, namely, 150 employees, 100 employees, and 50 employees will be used up to 2008. They will be introduced at different stages, at yearly and biannual intervals, up to 2008. In that context, the term, "a threshold" was used because it refers not to one threshold but to three. I am advised that was the reason. As far as the principal point made by Senator O'Toole regarding the reference to section 4(2) is concerned, section 5(1) refers to it. That is the position.
Therefore, the House will at least be aware that it makes reference to section 4(2).
That is my understanding. I referred to the threshold issue and said that, when it arose, I would take the view the threshold would stay in place.
Does the reference to threshold in this section also refer to section 11 or is it merely a reference to section 4?
I believe section 11 stands alone in that regard but I will examine the matter before Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 13:
In page 6, subsection (1), lines 7 to 8, to delete paragraph (b).
The paragraph does not add anything to the Bill and is a danger we could do without. Will the Minister of State explain how necessary it is or accept this amendment?
Section 5 sets out the method of calculating workforce thresholds for the purpose of determining whether the legislation applies to a particular undertaking. The section imposes an obligation on the employer to provide details of the workforce numbers to one or more employees, to the Labour Court or its nominee following receipt of a request. The amendment would seek to delete the obligation on an employer to provide the workforce numbers to the Labour Court or a nominee of the court. This obligation would afford anonymity to employees who do not wish to make a request directly to the employer. Amendment No. 25 seeks to amend the process for establishing information and consultation arrangements, which is the trigger mechanism to which I referred previously. The right to make the request for employee numbers directly to the court is a necessary and important provision in the Bill in the context of the trigger mechanism.
I am impressed by Senator O'Toole's attempted removal of the right of an employee to go to the courts. Obviously, he has had a change of heart from his traditional way of thinking but I wonder whether he is wise to do so. Is it not a constitutional right that an employee can go to court? I am not quite sure why the Senator proposes to remove this right from employees.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 6, subsection (2), line 9, after "from" to insert "a trade union or excepted body or".
I spoke on the matter of the recognition of a trade union earlier. We have attempted to insert a definition of a trade union in amendment No. 9. My amendment recognises the partnership process and its deepening into workplace levels. Trade unions or excepted bodies should be in positions to make requests under section 5. It relates to normal industrial relations practices and operations that would take place within an undertaking or a workplace. It strengthens the Bill from the point of view of everyone involved as they will deal with other people they know. It does not force anything on employers but refers to places where unions have members in those particular workplaces.
Will the Minister consider Senator O'Toole's point? Will he also clarify why the section does not include a provision stating this could be done by employees, trade unions or representatives?
Were the amendment accepted as presented, it would have the effect, which Senator O'Toole said is unintended, of providing a right for a trade union or excepted body to make a request to an employer for details of employee numbers even if it had no members working in that particular undertaking, which would not be desirable. We must remember the context as we are merely discussing establishing the number of workers in the undertaking for the purpose of the Bill. It relates to the method of calculating workforce thresholds. I have gone a considerable distance, as far as anyone could reasonably ask, to safeguard the anonymity of employees who seek this type of information and their ability to use the Labour Court or its nominees. There is no difficulty for individual workers or groups of workers who seek this information, as it is very well addressed by the Bill. The situation resulting from this amendment would not be reasonable.
That is not the intention of the amendment. What would be the Minister of State's view on a Report Stage amendment that clarified this could only occur in the case of a union already with members in the undertaking? We could discuss this on Report Stage. I accept that the amendment could lead to the interpretation cited by the Minister of State, which was not my intention.
Amendment, by leave, withdrawn.
Section 5 agreed to.
SECTION 6.
Amendments Nos. 15 to 22, inclusive, are related and it is proposed to discuss them together. Is that agreed? Agreed.
I move amendment No. 15:
In page 6, lines 24 and 25, to delete subsection (1) and substitute the following new subsection:
"6.—(1) Without prejudice to section 11, and subject to subsections (3) and (4), the employer shall arrange for the election or appointment of one or more than one employees’ representative under this section.”.
This group of amendments has two purposes. First, there is a need to clarify that employee representatives are not to be taken as managerial in all circumstances. We touched on this subject earlier. Approximately 25% of private sector employees are trade union members and we should, therefore, not automatically assume that everyone will be in the future. The Bill makes it clear that a direct system of communication with employees is equally acceptable but the section as it stands seems to imply that a system of employee representatives must be established in all cases.
Second, we must clearly spell out that, in all cases, the employee representatives are people who are employees of that employer and not outsiders, for example, trade union employees. In industrial relations, it is quite appropriate for employees to be represented by professional trade unions or other workers but not so in this case. We are discussing information and consultation, not negotiation. The issue is one of informing and consulting the employees in that particular company. When we speak about such, we should make it clear that we mean organisational insiders are the people involved.
I spoke about the fear of those who consider coming to Ireland to open their businesses. We are in competition with countries inside and outside Europe. We should not automatically assume that someone who holds the tradition of taking care of one's employees' relationships to such an extent the employees do not feel obliged to have a trade union should have one. If we are not clear on this issue, there is a danger that we will walk into a situation whereby we would be installing and enforcing trade unions on employees who do not necessarily want them. The big difference is that this relates to consultation and information rather than negotiation. I made the point on Second Stage that nobody should be in any doubt that it is not the employees' job to accept responsibility for running the company; that is the employer's job. It is the employees' job to be involved, consulted and informed about this area. It is important to realise that if the employees do not wish to have a trade union, they should not be obliged to have one.
The amendment in my name and that of Senator McDowell stipulates that employees' representatives means such trade unions as are representative of the employees where there is such a trade union or persons who are directly elected by the employees in the undertaking. I am taking into consideration the point made by Senator Quinn that not all workers or workplaces will be organised into trade unions. He also made the point very clearly that where the employees wish their trade union to represent them in any of these matters, they may do so.
Unions are always presented as stumbling blocks in much of the discussion about employer-employee relations and union-business relationships. Trade unions are a service industry. In the same way as a person at a certain level of management who is offered a severance or buy-out package would take it to his or her accountant to get advice on it, the person at the bottom of the line will very often go to his or her trade union for information, advice or guidance as to how to deal with whatever problem he or she faces. There is a certain view that we should be in some way afraid of trade unions. Trade unions and business can be very similar. As my colleague Senator Ross would say if he were here, sometimes it is hard to see the difference between IBEC and ICTU because they must fight the same battles together regularly. They come from different perspectives but they must recognise each other's function. We must also recognise that the best advice a worker will get is often from his or her trade union; it might be the only advice received. Half of the time, this advice will suit management far better than people trying to work matters out on their own because people will have a clearer and broader view, which is important to bring to bear on the matter. When an employee wishes to be represented or have the information passed through his or her trade union, this should be recognised, enacted and enshrined in the Act.
The other amendment in my name and that of Senator McDowell stipulates that the employer shall arrange for the election or appointment of one or more than one employees' representative under this section. In our earlier discussion, I said that I wanted an election and that I did not like the idea that an employer could select a person as a representative. The earlier definition stated that somebody could be appointed by the employer on the basis agreed by the employees. This is where the meat of the issue lies and where my concern arises. If there are 100 people on the staff and an unscrupulous boss decides that he or she will deal with two of them and sets up arrangements, any fair-minded person would say this was completely wrong. This is what the Minister of State is allowing to happen by allowing these words in there; this is a fair interpretation of what is written. The section is not balanced and is anti-worker. It allows something to be done by an unscrupulous employer; an employer with a bad mind about it, who does not want to do business with employees and who wants to run rings around the Act. This provision provides an opening for such an employer to do this; it is a gap in the fence and should not be there. There is no case for doing this in any way other than an electoral or democratic manner. If the Minister of State can reassure me about another method, I will be happy. It is not that I am hung up on a particular way. I am hung up on allowing a piece of legislation through that allows somebody to run rings around, misinterpret or reinterpret it. It does not seem acceptable that we would go down this particular road. I ask the Minister of State to listen carefully to what I have to say on these issues.
I do not see anything wrong with direct consultation. There is no conflict between what Senators Quinn and O'Toole said because employees can consult one another about who they want as their representative. It is quite reasonable that the employer should arrange for the election of the employees' representative. Employees might come together and appoint from among themselves without an election. We are not talking about bargaining and negotiations; we are talking about information and consultation.
One cannot make legislation for the very small number of rogue employers. In general, Senator O'Toole takes a negative approach towards employers in this House.
That is my observation since I came to the Seanad. I sat on the national women's committee of the Federated Workers Union of Ireland in the mid-1970s so I do not have a problem with trade unions. We must be very careful with these amendments. We do not want to intrude on existing first-class relationships between employers and employees achieved through the direct method or frighten people into thinking that the only way they can negotiate is through the trade union. A trade union is necessary to cope with a bad employer. In general, most employers will not succeed in a global, competitive market unless they have first-class relations with their employees.
There are a number of different amendments that pull in different amendments, which makes it slightly difficult to get one's head around the issue. We must be straight about what is intended in the amendments in my name and the name of Senator O'Toole. These amendments aim to ensure that if there is a trade union that has members in a particular undertaking, the employer should deal with it. The amendments contain nothing more complicated than that. We are not saying that trade unions must move in and we are not looking for closed shops or compulsory membership of trade unions. We are simply saying that where a trade union already exists within a particular undertaking, that trade union should be entitled to nominate somebody to the employer's forum. This seems to be a very reasonable principle. It does not make sense for us to seek to reinvent another system if a system where the trade unions represent the workers already exists. If this system already exists, it is perfectly adequate that it should continue. The Minister of State will probably refer to subsection (3) and tell me that it already guarantees it but it does not. There is a clear get-out element which looks to give succour to the Michael O'Learys of this world where they can claim that while there are trade unions in their workplace, there is no system of collective bargaining in play, which may be the case. We should be fair and upfront about this. We are saying that if there are members of trade unions in an undertaking, irrespective of whether there is a collective bargaining system in place, the workers should be entitled to nominate the trade unions as their representatives for receiving information and consultation.
I did not realise amendment No. 21 was to be included with the other amendments when I spoke earlier. This amendment, which was proposed by Senator White, would insert "in that employment" after "members" in page 6, subsection (3), line 34. This is rather like the Minister's amendment in that it is technical, and it should apply. Section 6(3) would then read:
Without prejudice to section 11, where it is the practice of the employer to conduct collective bargaining negotiations with a trade union or excepted body, employees who are members of a trade union or excepted body that represents 10 per cent or more of the employees in the undertaking shall be entitled to elect or appoint from amongst their members in that employment one or more than one employees’ representative for the purposes of this Act.
It is a useful technical amendment that would be of benefit.
Section 6 as it stands represents a good balance between the interests of employers, employees and their representatives. I assure Senators that no section in this Act took more time, examination or attempts to reach agreement with the various parties. This section seeks a number of fair and equitable balance in terms of the interests of both employers and employees by achieving what is required in the directive and what we want to achieve in the work place in terms of information and consultation.
The definition of "employee representative" in the Bill is an employee elected or appointed for the purposes of the Act. We dealt with that when we discussed definitions and we must bear that in mind. In essence, this means that for the purposes of information and consultation, all employees in the undertaking elect or appoint the relevant number of representatives. I believe this is the most democratic approach to adopt in terms of identifying employees representatives. This was discussed to some extent in the context of definitions at the beginning of the Bill. The concerns then expressed by a number of Senators are addressed in the provisions of section 6.
The Bill recognises the role of trade unions in undertakings where it is the practice of the employer to engage in collective bargaining with them. There is no impediment on trade union representatives or members who are employees of the undertaking from standing for election on an equal basis to other employees. Our approach takes account of the views expressed by ICTU.
Amendment No. 17 is a relatively minor technical Government amendment, which somewhat clarifies the situation. I will briefly deal with each of the amendments in so far as I can. Amendment No. 15 proposed by Senators White, Quinn and Coghlan is superfluous in that the appropriate place to have the reference to section 11 is in section 6(3), which is where it is. That suffices in this instance.
Amendment No. 16, in the name of Senators O'Toole and McDowell, is entirely covered by the provisions of section 6(3), which refers to the fact that employees who are members of a trade union or excepted body that represents 10% or more of the employees in the undertaking shall be entitled to elect or appoint from among their members one or more than one employees' representative. That is a considerable concession and people generally accept that, although some outside the House have difficulties in acknowledging it.
Amendment No. 17 is a Government technical amendment. Amendment No. 18 has been changed and has been replaced by the new amendment No. 21, to which Senator Quinn referred. I understand that the phrase "in that employment" is already covered in the section and is entirely clear from the beginning. Amendment No. 19 reads:
In page 6, lines 26 to 28, to delete subsection (2) and substitute the following new subsection:
"(2) Subject to the provisions of subsection (3) and Schedule 2 of this Act, the employer shall arrange for the election of employees representative under this section.”.
We might agree that is provided for, both at definition level and in section 6.
We have not dealt with amendment No. 22, in the names of Senators O'Toole and McDowell. Arguments have not been made in favour of amendment No. 22, which states:
In page 6, lines 36 to 39, to delete subsection (4) and substitute the following new subsection:
"(4) A person elected to the position of employee representative shall hold that office for a period of no longer than three years.".
I cannot pretend I am well disposed to it, but I am interested in hearing the arguments in its favour.
The argument in favour of amendment No. 22 is that it is good practice to move roles among different people so that it would not become similar to a role of club secretary held for 40 years. In such circumstances it becomes difficult to remove somebody because it becomes confrontational. It is better if someone must seek re-election. Requiring that somebody be re-established in the position is better than apparently appointing somebody for life. It does not make sense. It is not a question of deep principle. Both sides should examine this. I would be happy to hear arguments against it.
I am still not certain on the first issue. Is it correct that in a situation such as that in the example I gave, in a company with 100 employees, agreement on the representative could be reached with a number of them, and they would then be complying with the Act without any election? Perhaps I am misinterpreting it.
Subsection (4) states the number of employees' representatives shall be determined on a pro rata basis, but that is governed by the word "appointed" and by the definition of "appointed" under section 1. Unless I am completely misinterpreting it, I do not understand why we would allow a situation to continue whereby an election is not necessary. That is stated clearly. I do not agree with it but I understand it. There are no limits or description of the basis on which it can be agreed. It does not need to be agreed with all of the employees.
The Minister of State is leaving this issue open. An agreement can be made on behalf of everybody by people with no authority to make such an agreement. That is wrong no matter how one examines it. I am not pulling any tricks. It is wrong but somebody somewhere will do it. It will then end up in the Labour Court and we will be required to sort out the mess that has been created by people working within the legislation.
Senator White mentioned my views on employers. I can tell Senator White that over the years I have had more rows with trade unionists than employers, and I continue to do so. When I discuss issues here, people on both sides of the argument can turn matters upside down. It is not beyond the wit of man to consider a small group of workers within the workplace approaching the employer and stating they can agree to work in a certain way. An innocent employer may be convinced to act in a way that would cause a problem for him or her in the future. This works both ways.
Senator White can take it that when I state this can be abused, I mean that I have see both sides abuse situations and it can happen in any way. This is about certainty. The reason the Labour Court exists is to get closure on issues, and to ensure certainty. It is not to make life more difficult for employers or easier for employees. It is about having a reasonable adult relationship that works in a company with or without trade unions. That is not the issue.
I am arguing against some of my more basic principles. What I am proposing is what many multinationals did in order to keep trade unions out. They set up their own elections and presented that as more democratic than what the big trade union barons could propose. The Minister of State is well aware of the language they use. I am trying to achieve a balance that works. I feel strongly on this, not only because of principles but also for practical reasons.
A trade union official may get a telephone call from a worker who states he or she is not happy with how the representatives in a company have been appointed, selected or elected. He or she might explain that a few workers in one section, who have been there longer than anyone else, pulled a fast one by approaching the boss and explaining the way in which it should be done. The boss agreed without giving it much thought, and a mess was created.
In another situation, the worker might explain to the trade union official that the boss is far too smart for some of the other workers, took them out for lunch and they returned with an agreement to set up an undemocratic structure. The trade union official would have to deal with whatever argument is made. It might be member against member or members against the boss. Let us be clear about this. If he or she consults the legislation, he or she will conclude that it has been done precisely under the terms of the section which states "appointed by the employer on a basis agreed with employees". It does not even state "with the employees" or "with all the employees" but rather "with employees", which could mean any number of them. Where do we go from here? Now we have a row on our hands. Everybody knows this was never envisaged in the legislation. Everybody knows this was never meant to be the outcome. We have gone beyond that stage. People will say that that was then and this is now, that they did it correctly and that those with a problem should just buzz off. It will then go through all the processes of industrial relations and the various complaints procedures. People's time will, utterly unnecessarily, be wasted in the courts and elsewhere.
One might well ask who wins in such a situation. There is no gain for employers in what I am suggesting, nor are there any negative implications. It strengthens their position as much as it strengthens the union position. I honestly and firmly believe that to be the case. I accept Senator Quinn's point that this approach may be more cumbersome than two people agreeing something without going to any bother but what we are talking about is the cumbersome nature of democracy. We all find elections something of a nuisance at times but we have to go through them in order to obtain a result. A problem exists which will raise its head if we leave matters as they stand. I will say in the corridor to the Minister of State, Deputy Killeen, that we discussed it and that is what they are trying to sort out in the Labour Court and that it is also causing a problem somewhere else. Everybody would be tied up as a result, which would be a waste of creativity, productivity and time. I urge the Minister of State to take on board my amendment.
I totally agree with Senator O'Toole that a person should not hold an office for longer than a period of three years. However, I am totally opposed to the notion that the representative should always be elected and never appointed. It is fine for Senator O'Toole. He is in a forum where elections take place all the time but some people are not used to seeking election. In some cases people would be fearful of the idea of going for election and would not like to do so. In any gathering it is possible to deduce who would like to be a representative without being elected but regardless of whether they are elected or appointed, people should not hold positions for longer than three years. I feel very strongly about this as people can easily get into a rut. I agree with the principle but I am totally opposed to the notion of employee representatives only being elected.
On balance, it appears the Minister of State has got it right. Senator O'Toole referred to my concern about the process being cumbersome and bureaucratic. I agree that there is a danger of this happening. Some 75% of employees in the private sector are not represented by trade unions. Even in general elections, a large proportion of the population no longer vote. The voting tradition is less strong and I would like to see that change. However, it is wrong to almost insist on having elections when it is agreed between employees that those who are interested will have a say on that basis. Let us not assume that every employee wants to be actively involved in these issues. We should encourage it. A good employer will encourage it anyway. I do not believe we should enforce elections that would involve, to paraphrase Senator O'Toole, cumbersome methods.
I am interested in the notion that a representative would not hold office for more than three years. At the time of the last Seanad election, a proposal was put forward at a meeting in UCD that no university Senators should be allowed hold office for more than two terms. I think it was put forward by a new candidate. It is a reminder that if the prevailing culture is democratic in nature and if an incumbent is doing a good job, he or she is unlikely to be removed from his or her position. That is usually what happens. If a person is not doing a good job, there will clearly be a move against him or her. On that basis, the Minister of State is right not to accept that amendment. I do not hear any enthusiasm for the amendment in any event. The Minister of State has it right about the employer agreeing with the employees rather than necessarily having an election in all cases.
I endorse what has been said by Senator O'Toole. It is an important argument to which I expect we will return. I wish to broaden the discussion on trade unions. On reading subsection (3) it appears that trade unions will have the right to appoint or elect a representative from among their members, subject to several different conditions. First, there must be a system of collective bargaining within the undertaking in the first instance. Second, the union must represent at least 10% of the workers within that undertaking. Third, as I understand it — the Minister of State should correct me if I am wrong — it appears to exclude the possibility that a trade union official who is not actually working in the undertaking, would be the representative.
Several important linked principles are in evidence here. For the sake of argument, I am willing to live with the threshold, although we could say it should be lower or whatever. Given that we are talking about big corporations, I would have argued for a lower threshold. We are then left with two basic principles. One is that a system of collective bargaining must be in operation. There are companies where more than 10% of the workforce are represented by a trade union, which, effectively, will not deal with a trade union. They accept, reluctantly, that workers have the legal right to join trade unions but they do their level best to frustrate them. They discourage them from joining in the first place and, effectively, they will not negotiate with them in any meaningful way. I assume that, under this subsection, those companies would be entitled to turn around and say that although more than 10% of the workers are represented by a trade union, it is not their practice to deal with them so, therefore, this section does not apply and they will not deal with a trade union in the context of information and consultation. That is fundamentally wrong. If somebody working in a particular workplace wants to be represented by a trade union or a trade union official, that is his or her right and he or she should be entitled to do that.
My second point relates to trade union officials. If my reading of the subsection, which is somewhat convoluted, is correct, it appears to insist that the employee representative must him or herself be an employee of the particular undertaking. It is not open to a member of SIPTU to say that he or she wants the SIPTU representative from Liberty Hall to represent him or her in terms of obtaining information. It will be said that the people in the workplace will have the primary interest in getting the information but we are talking about large companies and we must adopt a sense of reality. If one takes Aer Lingus as an example, the type of information that has been provided in the fora involving the employers' and employees' representatives is very detailed. It is commercially sensitive and convoluted. If one provides it to somebody in the workforce, he or she may not be able to understand it. It appears to be a basic right that staff would be entitled to bring in people whose full-time job is to understand such matters. In other words, they are entitled to expert support and assistance from their trade unions because that is why they joined them in the first instance. If the subsection means what I think it means, that they cannot do this. That is fundamentally wrong.
Before the Minister of State replies, I wish to clarify an issue for Senator White. She made an important point to the effect that people are not used to seeking election and that in many workplaces, big or small, people would not want to put themselves forward for such a role. In my previous job I had responsibility for 3,500 primary schools throughout the country. Some schools were very big while others were very small with only two or three teachers in the school. The Minister of State can explain to Senator White how he had to do this in his former life, very often with reluctant employees, teachers in this case, who did not particularly want to take on responsibility but who nevertheless accepted. Every one of those 3,500 workplaces got together and organised to elect a member to serve on school boards of management. Similarly, the parents, who were also reluctant as they did not want to have anything to do with it and were happy to let the teachers or the board run the schools, also got together and elected people to serve on those boards. I say that because whether people are interested in being elected or have experience of it, this is not an impossible task to implement. What we are talking about today is far easier than what both the Minister of State and I have experienced in former lives. We should dispose of that particular objection.
In answer to Senator Quinn's remark on the terms of office, there is nothing in my amendment to prevent somebody from being re-elected to a term of office. That Deputies and Senators are elected for a period of not more than five years does not stop them putting themselves forward for re-election. My amendment does not prevent candidates opting for re-election although people might interpret it that way. It is a matter of there having to be an electoral process at the end of each period in office. The period does not have to be three years. This was chosen quite arbitrarily and perhaps it is too short — I do not have a view on that. If we deal with the issues of principle, the implementation difficulties will be dealt with easily.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.
We are debating section 6, amendment No. 15.
A number of amendments were being debated at the same time.
Amendments Nos. 15 and 16 are related and amendment No. 18 is an alternative to amendment No. 15. Amendments Nos. 17 to 22, inclusive, are related, which means that amendments Nos. 15 to 22, inclusive, may be discussed together.
Amendments Nos. 16, 19, 20 and 22 are in my name. Before the suspension of the sitting I had put a few questions to the Minister of State, specifically relating to the role of trade unions and the effect of section 6(3). Assuming there was a 10% threshold in place, I was seeking to inquire whether it was open to employers to tell employee members of a trade union that they were not going to deal with the union in circumstances where that was not the practice within a particular undertaking. I was also anxious to tease out whether section 6(3) means, in effect, that trade union officials could not be representative of employees within a particular enterprise.
The question about trade union officials is not covered under the legislation because the requirement specifies the representative should be an employee of the undertaking.
It is not possible for a worker to say that he or she wants to be represented by a trade union official if that person is not employed in that undertaking.
That is correct as regards the provision of information and consultation. The legislation provides that it must be an employee. The other point raised by Senator McDowell relates to cases where an employer does not conduct collective bargaining negotiations with a trade union or other accepted body. As the Cathaoirleach and Senators McDowell and Quinn will be aware, that is an issue for different legislation some time in the future. A voluntary system is currently in place which will continue. It would not be appropriate to depart from that in the context of this legislation. That is a fundamentally different issue.
A number of points were raised by Senators Quinn and White. Senator White had concerns about the process of election and whether people might be willing to embrace that concept. I was interested in the examples given by Senator O'Toole as regards small schools, etc., where people might not have been too enthusiastic about embracing the procedure but nevertheless did so. I am also interested in the workplace context, at the manner in which the appointment or election of safety officers is undertaken. People tend to be quite proactive in that area and I am pleased about that.
Senator Quinn raised the point, which he has highlighted a number of times, about a very cumbersome bureaucracy. It is a fair point but it is possible to implement this legislation in a manner that manages to comply with the directive, encourages good practice and is not overly cumbersome. We have come close to that objective in the Bill. By the time the Bill has been passed by the Oireachtas we will have legislation that is user-friendly on both sides of the industrial spectrum. That is certainly my hope.
A couple of issues were raised by Senator O'Toole. One related to amendment No. 22, which I confess I entirely misunderstood. I thought he was proposing that people should be precluded from serving after three years. He clarified that. One of the reasons this rang alarm bells is that there is a provision in the Fianna Fáil Party rules that officers must retire after a four-year term. Having seen the amount of angst that creates, I would have been reluctant to accept the Senator's amendment. However, he has clarified that people should be entitled to seek another term of office. That is dealt with separately in the Bill in terms of the entering into new agreements.
The other point Senator O'Toole makes is about the entire process and is, in a sense, also being made by those who are represented as being somewhat more concerned on the employer side. Naturally on Committee Stage we are reviewing section 6 in its own right. However, sections 8 and 9, in particular, impact very strongly on section 6. Under these sections all negotiated and pre-existing agreements must be approved by the majority of the employees, therefore, the concern which Senator O'Toole expressed about section 6(1), on employee representatives, is dealt with under both sections 8 and 9, which specify that a negotiated or pre-existing agreement must be approved by a majority of the employees or a majority of employee representatives.
I am glad the Minister of State has clarified the fact that trade union officials are effectively precluded from this. This is a return to the bad old days. We are dealing with large companies, not small concerns. If the information to be provided is to be meaningful, it is likely that it will be technical and complex. It is asking too much to expect individual employees in the workplace to be in a position to understand or appreciate the information they are given or bring to bear the expertise needed to make sense of it. I come back to the example of Aer Lingus where the trade unions have dealt in a very responsible way with management and look to effect change over a period of time based on the information that has been given to them by the employers. It cannot reasonably be expected of fulltime workers in a company that they will be in a position to assimilate such information and have the expertise to deal with it. It is, therefore, entirely unreasonable to exclude by legislation the possibility that people who are members of a trade union might choose to be represented by that body. That seems to be a very basic principle which it is within the power of the Minister of State to accept. I urge him to think twice about it.
I accept the point made by the Minister of State regarding collective bargaining and recognition. It is a much bigger issue. I do not expect him to suddenly do a volte-face in the context of this Bill, but it is an important matter. It is frustrating to consider legislation that is fine in principle but which will still enable employers who are seeking to frustrate worker organisations by allowing them to insist that it is not their practice to deal collectively. They may opt to appoint people of their own choosing who may be in a position for life, with whom they will deal exclusively, regardless of whether there is a trade union. I ask the Minister of State to think again. I appreciate he is not going to concede on the collective bargaining and recognition issue. However, he should consider allowing trade union officials to represent workers who are union members.
The Minister of State noted the requirement that pre-negotiated agreements be sanctioned or approved by a majority of workers voting in a ballot. As he will be aware, this is not the case because section 8 also provides that a majority of employee representatives may approve such agreements. Under section 8(3)(c), they can also be approved by some other predetermined mechanism not set out in the Bill. As a result, trade union members or employees may use means other than a vote to approve or extend pre-negotiated agreements.
I apologise for my error in omitting to mention that a majority of employee representatives or employees could approve such agreements. I thought I had referred to this option. While I understand the Senator's point on the complexity of the information in certain circumstances, the provisions of the legislation arising from the directive apply to employees in a particular work environment. It is entirely reasonable, therefore, to confine the transfer of information and the process of consultation to the employer and employees. Although one could argue that trade union officials are excluded, one could also argue that the parish priest, bank manager or solicitor is also excluded from the process. The Bill provides for employees to have access to the information and consultation process. It is not reasonable to suggest that a specific category of person is excluded from participation in the process.
The Minister of State's comparison is spurious. Let us take Irish Ferries, assuming it will be governed by the legislation, as an example, although this may not be the case given the flag of convenience under which its vessels sail. No employee of Irish Ferries will bring a bank manager or parish priest along to consultations but he or she may well want to be accompanied by a professional trade union representative. Union officials are no longer militants on the shop floor but professional, trained individuals who spend considerable time and effort learning negotiating skills and trying to assimilate information which previously only accountants could understand. In this regard, I endorse Senator O'Toole's comments because it is also my experience that trade union officials spend much more time having rows with their members than with their employees. These days one must try to be reasonable and take the centre ground much of the time. Incidentally, this is also true of Labour Party politicians.
It also applies to politicians of other parties.
In often complex circumstances, in which employees must deal with employers who have a range of expert advice available to them, it is not unreasonable that employees have the professional advice of trade union officials at their disposal, on condition that trade unions are organised in the workplaces in question. It is open to the Minister of State under the terms of the directive to make such provision and I urge him to do so.
Is the amendment being pressed?
I ask the Minister of State to reflect on the matter before Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 6, lines 24 to 25, to delete subsection (1) and substitute the following new subsection:
"(1) ‘Employees' representative' means such trade unions as are representative of the employees or where there is no such trade union, such persons that are directly elected by the employees in the undertaking.".
Amendment put and declared lost.
Government amendment No. 17:
In page 6, subsection (1), line 24, to delete"‘Employees' representative'" and substitute "In this Act, ‘employees' representative'".
Amendment agreed to.
Amendments Nos. 18 and 19 not moved.
I move amendment No. 20:
In page 6, lines 29 to 35, to delete subsection (3) and substitute the following new subsection:
"(3) A trade union or excepted body who has members in the undertaking and employees in the undertaking shall be entitled to nominate persons for election to the employee forum.".
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 21 to 23, inclusive, not moved.
I move amendment No. 24:
In page 6, between lines 43 and 44, to insert the following new subsection:
"(6) If the Court finds that the complaint referred to it under subsection (5) is well founded it may direct the respondent to take measures which may include the organisation of new elections.”.
This amendment specifically provides that in circumstances in which a court receives a complaint about any aspect of an election, it will have the power to direct that new elections be held in the organisation in question. This power appears implicit in the section in any event because it provides that a court will have power to make an investigation and issue a recommendation. It should, however, explicitly provide that a court may recommend that a new election take place.
Having examined the amendment carefully, I am assured that the Bill, as drafted, provides discretion for the Labour Court as regards the determination it may issue under this section. The amendment is not necessary.
While I accept that the Bill does not place constraints on the recommendations a court may make, it strikes me as sensible to explicitly provide that a court be able to direct that another election be held. Nevertheless, I am happy to accept the Minister of State's assurance that this option is already sufficiently provided for in the Bill.
Amendment, by leave, withdrawn.
Section 6, as amended, agreed to.
NEW SECTION.
Amendments Nos. 25 to 31, inclusive, are related and may be discussed together.
I move amendment No. 25:
In page 7, before section 7, to insert the following new section:
7.—(1) An employer shall enter into negotiations with the representatives of employees to establish information and consultation arrangements.
(2) Within 6 months from commencing negotiations, the parties shall agree to establish an information and consultation arrangement by means of—
(a) a negotiated agreement under section 8, or
(b) the Standard Rules set out in Schedule 1.
(3) The period of 6 months referred to in subsection (2) may be extended by agreement of the parties.”.
These amendments deal with the trigger mechanism, an extremely important principle. The Bill provides for a complex and unnecessary trigger mechanism. In establishing a right to information and consultation, it is reasonable to provide that this entitlement be automatic. The Bill, by including a trigger mechanism under which a certain number of workers must request the establishment of the new arrangements, effectively allows employers to opt out, at least temporarily, of the requirements to provide information and engage in consultation. This arrangement could have serious effects. If an enterprise is functioning well, employees will be happy to allow existing arrangements to continue. As a result, companies will not be required to engage in crisis talks or crisis management of any kind and demand for information and consultation of the type provided for in the legislation will be minimal. Only when something goes badly wrong — for example, changes in work practices are mooted or the possibility of redundancies is raised — will employees decide they need to invoke the provisions of the Bill. Unfortunately, the Bill provides that the information and consultation mechanism may take up to six months to kick in, by which time the initial crisis will be long over and new work practices or redundancies imposed.
I was somewhat surprised when I read this because it is not in keeping with most of the labour legislation, which normally does not allow opt-outs. I would be interested to hear why it was felt necessary to allow employers, to all intents and purposes, to at least delay the implementation of the Bill and the implementation of an employees' forum and make it likely that it is almost meaningless because a six-month delay, if it occurred, would be far to long a period in which to react to a crisis or any particular difficulty arising within an enterprise. In summary, I and my party, whatever about the complexities involved, are opposed to the notion of there being a trigger mechanism in the first instance. It should not be in the legislation; this should be an automatic right.
I, on the other hand, have a different view entirely to that expressed by Senator McDowell. Setting aside the rights of employees and employers, the amendment proposed is disproportionate and it should be rejected because it is counterproductive to the ethos that the Bill sets out to establish.
We are not talking about negotiation. I am aware that I stated this previously and that I am repeating what I said. We are talking about consultation and information. It seems, therefore, that amendment No. 25 is changing the entire ethos of the intention in the Bill and in the European directive.
The concept in use in Ireland for many years is not to force an employer, without good reason and some consensus, into information and consultation when it might not be appropriate or the timely course of action. The amendment, combined with those others on the employee representation, would mean that a trade union representing a tiny minority of employees could force an employer unreasonably into negotiation. That is not why we are here.
We will discuss the trigger mechanism in a moment because we are covering a range of topics at this stage. However, I wish to touch on that point in respect of the amendment proposed by Senators O'Toole and McDowell. It is correct to turn this down. It would change the ethos of the objective of this legislation, which is about consultation and information, not negotiation. The Minister of State must hold firm on that particular area.
We are discussing amendments Nos. 25 to 31, inclusive, together.
Yes, but this relates to section 7.
No. We will discuss section 7 when we reach it. We are discussing the amendments now.
The acceptance of this amendment involves the deletion of section 7. The amendment is designed to force an employer, without good reason and consensus, into information and consultation when it would be neither appropriate nor timely. This amendment, combined with those on employee representation, would mean that a trade union representing a tiny minority of employees could force an employer unreasonably into negotiations in circumstances where the amendment would, in addition, deprive the employer of access to the Labour Court on the number or percentage of employees involved. In setting aside the employer's rights, this disproportionate amendment must be rejected as counterproductive to the ethos sought by the Bill and the EU directive. I remind Senators that the purpose of this article of the directive is to promote social dialogue between management and labour.
The note kindly provided to me deals with the entire group of amendments.
If the Minister of State will reply to all of the amendments together, I wish to make one or two observations because we tabled a number of amendments.
I apologise, a Chathaoirligh, but I find it difficult to discuss a number of matters, which I understand may be related, together. Amendment No. 26, in the names of Senators White, Coghlan and me, seeks, in page 7, line 1, to replace the word "nominee" with the term "a nominated officer". When I looked at that first, I wondered why that needed to be done. The object of the amendment is simply to bring clarity in terms of who might be a nominee of the Labour Court. As drafted, the Bill provides that the Labour Court could nominate anyone it liked. That is much too broad and we could do with a little more precision. Surely the intention is what we would commonly understand it to be, namely, that the person nominated would be an official from the Labour Court support service. If that is the case, that is what should be stated in the Bill. That is the application of that amendment.
My other amendments relate to the trigger mechanism. Amendments Nos. 27 and 29 involve replacing "10 per cent" with "15 per cent". Amendment No. 30 involves increasing "100 employees" to "250 employees". These amendments refer to an issue raised on Second Stage, namely determining a desirable level for the number of employees requesting an information and consultation system which would trigger the provisions of this legislation. We must guard against a non-representative minority and I certainly have had some experience in the past that where others are not necessarily terribly interested in the topic, a tiny active and vocal minority suddenly take over a concern. The threshold level of 10% is too low in this respect and we would be far better off setting it at 15%.
More important, we need to adjust the absolute number set for the threshold. In the section, the threshold can be as low as 100 employees. In the case of a big firm such as one with 5,000 employees of which there are a few in the country, the threshold would effectively be set at 2% of the total number working in the company, which is far too low. My amendment proposes to increase the threshold to 250 employees. This would bring the percentage threshold in a company of 5,000 employees to 5%, which is still too low in my opinion but it would at least would be better than the 2% proposed.
Those are some of the amendments included in this group. The Minister of State should give serious attention to changing the figures and increasing 10% to 15% and 100 employees to 250.
In large companies with the considerable numbers of employees to which Senator Quinn referred, the proposal that the number should be increased, that it would not be an unrepresentative minority or that the measure would not be open to mischievous abuse, would be worthy of consideration by the Minister of State. I wish to hear the Minister of State's view on that matter.
Although I discussed the amendment in my name, which I moved, I did not address the other amendments and wish to do so before the Minister of State replies. I am sitting here in bewilderment listening to colleagues on the IBEC side of the argument. This is unreal. On one hand, they are stating that information and consultation is a wonderful proposal, that it is good practice and that all organisations should already have it in place. They are stating that we all talk to our employees, which of course is good and fine, and that they all are happy. On the other hand, however, they are taking every possible measure to ensure that the mechanism, however restrictive, becomes even more restrictive so that it is not used at all in most cases. Either this is a right and a good practice or it is not. Colleagues are stating that it is a good practice while also trying to make it as difficult as possible. They are talking about mischievous intent and trouble-making. It is information and consultation. It is a basic right. I am bewildered by the thrust of the argument and, with due respect to colleagues, of course one knows from where it comes. Either they accept that there is such a right or they do not. If they accept that such a right exists, then let us make it easy to exercise and put in place a fair framework within which this can be done.
With respect, we are not here just for talk and rhetoric. We are discussing the country's future.
Senator White should address the Chair.
I remind Senator McDowell that there are 240 companies, mostly high-tech and pharmaceutical companies, that employ more than 1,000 people. Therefore, I believe the 10% figure required to set off these discussions is dangerous and far too low.
It is dangerous because 10% or 100 employees is a very low number in a large company. I speak from practical experience, as do the others who support this change. It is a serious matter and the Minister should reflect seriously on it. The figure should be 15% or 250 employees. Otherwise it will give a wrong signal to large companies. When international investment grew here in the 1970s and 1980s we had 18% or 19% unemployment. I am not confident our economy will stay robust unless we remain competitive. As Senator Quinn said earlier, we do not want to give wrong signals to future investors. We must be careful not to be a rigid bureaucracy. The reason the IDA was so successful in bringing international companies into Ireland was because decisions were made quickly by the IDA and Government. It is very important that we do not send out a wrong signal by saying the figure of 10% or 100 employees is fine.
Government amendment No. 28 is a technical amendment recommended by the Parliamentary Counsel, as is amendment No. 31. This amendment adds clarity to the subsection and provides that the Labour Court shall notify the employer and the employees whether the employment threshold has been met in terms of a request from the employees for the establishment of information and consultation arrangements.
If the Senators' amendments were to be adopted they would fundamentally change some important points in the Bill. Amendments Nos. 27, 29 and 30 seek to increase the minimum employee threshold to 15% and the maximum number of employees to 250. On the other hand, amendment No. 25 proposes removing the employee thresholds from this section of the Bill and proposes other amendments related to the Labour Court. Amendment No. 26 proposes replacing a "nominee" of the court with "a nominated officer".
The directive refers to the right of employees to be informed and consulted about certain matters that affect them. Employees can choose whether to exercise this right. The Bill, as drafted, sets out the minimum and maximum number of employees needed to initiate negotiations to establish information and consultation arrangements. The minimum employee threshold, which is the lesser of 10% or 15 employees, ensures that a minimum level of support from employees must exist before an information and consultation arrangement is introduced. The maximum threshold, which is the greater of 10% or 100 employees, ensures that where a sufficient interest exists, employees in large organisations do not face an overwhelming obstacle in obtaining the requisite number to make a request. A precedent for an employee threshold already exists in section 10(1) of the Transnational Information and Consultation of Employees Act 1996. The same threshold, 10% of employees, is used in that legislation, without causing problems.
The majority of submissions received on foot of the consultation paper issued in July 2003 favour an opt-in mechanism for the exercise of the right to information consultation under the Bill. These submissions, together with the wider consultation process, helped inform the drafting of the Bill which I believe is a balanced reflection of the needs of Irish employees and businesses in the context of our economy and society.
I would now like to deal with some of the points raised by individual Senators. Senator McDowell and other Opposition Senators do not believe this is a fair framework. Members' contributions illustrate how difficult it is to strike a reasonable balance in finding a way to provide information and consultation. It came down to choosing percentages and numbers and it was convenient for me that there happened to be a formula in this regard in pre-existing legislation. I did not have to invent it and it was even more attractive because it was a formula that has not caused difficulties, one of the reasons I recommend it.
Senators Coghlan, Quinn and White believe the trigger level is too low. I appreciate people on the employer or trade union sides have made a strong case to Senators on both sides of the argument and they must bring those concerns to the House. As Senators are fond of telling each other, but not so fond of admitting, the legislation is about information and consultation and neither a panacea for all our ills nor the end of the world. We must strike a reasonable balance. I believe the balance we have chosen in this regard is reasonable.
I know Senator Coghlan and others believe the upper limit of 100 employees allows for a mischievous minority to set the process in train. In my experience, if 100 employees seek something of this nature, it is unlikely they are a mischievous minority. The requirement of 100 is a fairly large number. It would be no more difficult to get 250 from a certain number than it is to get 100 from another number or no more difficult to get 15% than 10%. The figures of 10% and 100 employees are a reasonable compromise position. They are, after all, only in the context of setting in place the information and consultation process.
Senator Quinn raised the question of who the Labour Court nominee might be with regard to amendment No. 26. I am mindful of the court's wonderful record and the positive contribution it has made to industrial relations here. I do not have a difficulty with what is proposed, but I am happier to allow the Labour Court to come up with its nominee. It is difficult to visualise circumstances where that might not be along the lines outlined in the amendment, but there might be circumstances where somebody familiar with the company who would be acceptable to both sides might as a nominee bring matters to a speedy and effective conclusion more quickly than somebody else.
I have confidence in the Labour Court to discharge its obligations under this legislation in a sensible and constructive fashion. We had a previous amendment I did not accept for this same reason. I am confident the Labour Court is capable of dealing with the issue sensitively. The occasion would be sensitive and would need to be progressed without offending any of the parties involved. The Labour Court is more than capable of doing that.
Senator White mentioned the number of high-tech companies employing over 1,000 people. Those employees are likely to be highly responsible and sensible and it is unlikely they would be the kind of mischievous minority that would seek to do something that would undermine their jobs or damage the company. Our capacity to compete is not adversely affected or diminished by the provision of information and consultation. All the research we have in this area suggests that our ability to compete is enhanced rather than diminished in situations where there is good quality information and consultation. This is the huge plus of this legislation, but we seem to have a mental block with regard to acknowledging it when it comes to the detail of the Bill. I urge Members to acknowledge that we have mulled over the issue for a long time, considered all the angles and come up with what we believe is sensible, workable and fair from the perspective of both employer and employee.
I listened carefully to the Minister of State's comments about my suggestion of a nominated officer, rather than a nominee. I take his point that he has confidence in the Labour Court's ability to make an appointment. I ask the Minister of State to reflect on the 10% minimum requirement currently contained in section 7(1)(b). I am concerned about what will happen when 10% becomes 2% in the case of a very large company. I imagine that 2% of almost any group could be classified as wildcats or as inconsiderate individuals who do not have their feet on the ground. I suggest that the Minister of State should give further consideration to the 10% provision. I would live with a minimum requirement of 10%, as opposed to 15%, if I thought the figure was not limited to that number. I am worried that the minimum provision of 100 employees will be changed to 2% of a large number. If the Minister of State retains the 10% requirement, I will live with that as long as no other number is provided for instead. Perhaps the Minister of State will give some consideration to that. I fear that 2% of the workforce of a large company could act in a manner that is not in the interests of the other 98% of employees. Therefore, it would not be democratic to provide for a minimum requirement of 100 employees.
I support fully Senator Quinn's comments about the 250 employees. This is an important issue. I am not asking the Minister of State to make a decision on the matter today, but to state that he will give the matter further consideration and to outline his thoughts again on Report Stage.
A fundamental issue is at stake in this group of amendments. It is clear that there are significant differences between my opinions on the matter and those of my colleagues. The Minister of State said that employees have "a right" to information and consultation. If we all agree that it is a good and fine thing that they have such a right — every Senator who has contributed to this debate seems to thinks so — there is absolutely no need for us to introduce a trigger mechanism to bring that right into force. Why can we not agree to give people that right by obliging enterprises and employers to put in place the necessary mechanisms to make it a reality? I do not understand the argument that to do so would create a capacity for mischief-making. I am making the case for the provision of information and consultation, possibly on the basis of just two meetings per year. Despite the fact that everyone seems to think that is a good thing, certain people seem to find it necessary to try to put in place mechanisms to make it very difficult, or almost impossible in some cases, to facilitate it. If one has the right to information and consultation, why is it mischievous for one to want to invoke that right? If it is a good thing to legislate for that right, why do people think that the providers of foreign direct investment, such as IT companies, will leave this country if they have to conferthat right on their workers, or if they have to work within the framework being set out in the Bill?
I wish to highlight the fundamental contradiction within the approach being adopted in certain quarters. If the right to information and consultation is a good thing, we should make it easy for workers to invoke that right by removing the trigger mechanism. I oppose any suggestion that the minimum requirement within the trigger mechanism be increased to give some sort of comfort to companies involved in foreign direct investment. Those who favour an increase are essentially saying to such companies that although they understand that the EU directive cannot be ignored and that something needs to be done about it, they are trying to make it as meaningless as possible. I fundamentally disagree with the suggestion that we should send such a message to companies involved in foreign direct investment.
I agree with the Minister of State. It is entirely appropriate that workers should be given every opportunity to access information and consultation in the manner outlined in the Bill. We all have to make conscious decisions about marriage, work and voting, etc. People are well capable of working towards targets. The Minister of State correctly said that people are much better workers when they are empowered.
I remind the Senator that the vast majority of Senators were originally nominated by nominating bodies. I was nominated by the Irish Exporters Association. I have to reflect on my experience as a businessperson as well as the advice of those involved in the bodies which nominate candidates to the industrial and commercial panel.
I inadvertently said that the maximum employee threshold is the greater of 10% of employees, or 100 employees. I should have said that it is the lesser of 10% of employees, or 100 employees. I am sure some Senators noticed my error.
Senator Quinn made a reasonable point about the provision as it will apply to 2% of employees in a large company. However, I remind him that 100 employees constitute a substantial number of people in any event. If the employees invoke the right, it is only a right to information and consultation. Senator McDowell made the opposite point to Senator Quinn. A certain percentage of people choose to exercise the right to vote, for example. We would usually prefer if many more people exercised that right. In this instance, it does not seem particularly onerous to require that the process will not be set in train unless 10% of people invoke their right to set it in train. The Senators who have listened to the contributions of their colleagues who have disagreed strongly with them will appreciate that it is difficult to find some middle ground in this regard. The Bill reflects the compromise that has been reached. I played a role in striking that balance. I was helped by the fact that an existing formula contained in other legislation has worked very well. Some people will never accept a need for a trigger mechanism. Others will never accept that the minimum requirement within the trigger mechanism is big enough. I think we have struck a reasonable balance between those positions and I hope to proceed on that basis.
If I were the Minister of State — I hope he does not construe this as a personal remark — I would seriously consider engaging in discussions with the 240 key companies which employ more than 1,000 people. He needs to listen to the opinions of the companies in question to ensure that we do not have excessive bureaucracy and regulation. I have made my suggestion with all due respect to the Minister of State, who I am sure understands where I am coming from.
I can give the Minister of State's answer for him. It is interesting and instructive to read the EU directive, which is clearly intended for the companies about which Senator White is talking. This matter originally arose at EU level in the context of globalisation and the movement of capital. It was necessary to take account of the fact that many of the multinational corporations operating within the EU, but which originate from countries outside the EU, have different practices. It was felt there was a need to prescribe basic minimum standards of consultation and the provision of information to apply to the type of companies described by Senator White. The standards in question will have to apply throughout the European Union. In essence, we are telling US multinational corporations that if they want to do business in the EU, they must meet very low standards of information and consultation. I do not think we should make it any more difficult than it already is for employees to invoke their rights in this regard.
I am fascinated by Senator McDowell's comments. As I understand it, the Labour Party is proposing to go into coalition with Fine Gael, which is a right-wing party. However, it is going back to its——
We are not discussing the Labour Party. We are discussing the Employees (Provision of Information and Consultation) Bill 2005.
Senator McDowell is pursuing a form of left-wing ideology that is wrong. He is playing games with private business. As I said earlier, only 25% of private enterprises in this country are unionised. I am in favour of unions, when they are needed. What Senator McDowell is doing is wrong. He is playing games at the moment. He is returning to left-wing policies, rather then joining his Labour Party colleagues in moving to the right wing.
I have allowed plenty of time for the discussion on this group of amendments.
Amendment put.
The Committee divided: Tá, 17; Níl, 27.
Tá
- Bannon, James.
- Bradford, Paul.
- Browne, Fergal.
- Burke, Ulick.
- Coghlan, Paul.
- Coonan, Noel.
- Cummins, Maurice.
- Feighan, Frank.
- Finucane, Michael.
- Hayes, Brian.
- Henry, Mary.
- McDowell, Derek.
- McHugh, Joe.
- Norris, David.
- O’Toole, Joe.
- Phelan, John.
- Terry, Sheila.
Níl
- Brennan, Michael.
- Callanan, Peter.
- Dardis, John.
- Dooley, Timmy.
- Feeney, Geraldine.
- Fitzgerald, Liam.
- Glynn, Camillus.
- Hanafin, John.
- Kenneally, Brendan.
- Kett, Tony.
- Kitt, Michael P.
- Leyden, Terry.
- Lydon, Donal J.
- MacSharry, Marc.
- Mansergh, Martin.
- Minihan, John.
- Mooney, Paschal C.
- Moylan, Pat.
- Ó Murchú, Labhrás.
- O'Rourke, Mary.
- Ormonde, Ann.
- Phelan, Kieran.
- Quinn, Feargal.
- Ross, Shane.
- Scanlon, Eamon.
- Walsh, Kate.
- White, Mary M.
Tellers: Tá, Senators McDowell and O’Toole; Níl, Senators Minihan and Moylan.
Amendment declared lost.
SECTION 7.
Amendments Nos. 26 and 27 not moved.
Government amendment No. 28:
In page 7, subsection (2), line 6, to delete "means" and substitute "shall be construed as meaning".
Amendment agreed to.
Amendments Nos. 29 and 30 not moved.
Government amendment No. 31:
In page 7, subsection (3), line 22, to delete "that" and substitute "whether".
Amendment agreed to.
Question proposed: "That section 7, as amended, stand part of the Bill."
The section provides for the trigger mechanism and since I have objected, in principle, to the whole notion of such a mechanism, it is appropriate to oppose the section.
Question put and declared lost.
NEW SECTION.
Amendment No. 35 is related to amendment No. 32 and both amendments may be discussed together by agreement.
I move amendment No. 32:
In page 8, before section 8, to insert the following new section:
8.—(1) An agreement establishing information and consultation may be negotiated by the employer and the employee representatives (to be known and in this Act referred to as a ‘negotiated agreement').
(2) A negotiated agreement shall be—
(a) in writing and dated,
(b) signed by the employer,
(c) approved by the employees,
(d) applicable to all employees, and
(e) available for inspection by those persons and at the place agreed between the parties.
(3) For the purposes of subsection (2)(c), the agreement shall be regarded as having been approved by the employees where a majority of those employees employed in the undertaking who cast a preference do so in favour of the terms of the agreement.
(4) The employer shall ensure that the procedure for the casting of a preference referred to in subsection (3) is confidential and capable of independent verification and of being used by all employees.
(5) A negotiated agreement shall include reference to the following matters—
(a) the duration of the agreement and the procedure, if any, for its renegotiation,
(b) the subjects for information and consultation,
(c) the method and timeframe by which information is to be provided,
(d) the method and timeframe by which consultation is to be conducted, and
(e) the procedure for dealing with confidential information.
(6) At any time before a negotiated agreement expires or within 6 months after its expiry, the parties to the agreement may renew it for any further period they think fit.
(7) If no new negotiated agreement is made by the parties then the Standard Rules set out in Schedule 1 of this Act will apply.
(8) A negotiated agreement renewed under subsection (6) within the period of 6 months referred to in that subsection shall be deemed to have remained in force from the date it would otherwise have expired.”.
Amendment No. 32, in effect, repeats section 8 except it leaves out a couple of subsections on which I could perhaps elaborate. The section deals with pre-existing arrangements and how they are to be confirmed. This amendment specifically seeks to provide that where a pre-existing arrangement is not endorsed or, effectively, expires, we revert to the standard rules as provided for in the Schedule. This section as it stands is silent as to what happens in circumstances where a pre-existing arrangement ceases to apply. Rather than allowing, or providing for, a hiatus in such circumstances, we thought it would be useful to provide that the standard rules in the Schedule would come into play.
Perhaps more important is how pre-existing arrangements are endorsed. We touched on this earlier when the Minister of State said they had to be approved by a majority. There is provision in the section for pre-existing arrangements to be endorsed by a majority, as we would wish. It is a basic principle of democracy and of the Bill that if a mechanism is in place in a particular workplace, it should have the support of the employees. Our amendment relies solely on that particular mechanism for endorsing pre-existing arrangements.
We are unhappy about the other two provisions in the Bill as it stands, namely, that a majority of employee representatives should be allowed to endorse the arrangement or that any other procedure agreed to by the parties for determining whether this agreement has been so approved discloses that it has been so approved. I do not know what section 8(3)(c) means. It clearly seems to envisage that there is some other mechanism whereby an agreement can be approved which is not a plebiscite and is not by a majority of representatives, but I would like clarity from the Minister of State as to exactly what it means. The basic principle we seek to establish in our re-draft of section 8 is that any pre-existing arrangement should be put to a ballot of the workforce before it is endorsed.
There would be a number of effects of accepting this amendment. For example, by deleting the wording "establishing one or more information and consultation arrangements", it reduces the flexibility allowed to employers and employees to agree different information and consultation arrangements to govern different branches or units within an undertaking. We had this debate earlier and I referred to the fact it would come up later. I suspect Senator McDowell would like to see this flexibility continued in the Bill in any event. It also removes the option for employees to carry out direct negotiations with their employers on the type of agreement they wish to put in place. The Bill provides for direct involvement systems which are a common feature of many multinational and indigenous companies. The amendment removes a basic right of employees to negotiate their own agreements and arrangements directly with the employer.
In general in the debate, we have tended to down play the value many employees place on having the facility to have their own arrangements for information and consultation. We have also failed to comprehend the extent to which that happens at present. The amendment removes options the Bill provides in relation to approving an agreement. The Bill allows three options and the proposed amendment reduces this to one. I am a little confused or surprised that it deletes the option allowing for an agreement to be approved by the employee representatives. I would have thought that would have been one of the options which would have been somewhat attractive to people looking for trade union support.
The amendment imposes the standard rules on the parties if no new agreement is negotiated. This is very important because I do not find many people telling me they want to be consigned to dealing with the standard rules. It is important we allow the flexibility for people to reach agreement by the other means in the interim. This amendment does not provide the flexibility and autonomy to the parties to decide the approach to take in terms of renewing agreements. On balance, I do not believe the amendment improves the Bill. Government amendment No. 35, which is being taken with amendment No. 32, is a technical amendment and is the only change I wish to make.
Senator McDowell asked about section 8(3)(c), which states: “where the result of employing any other procedure agreed to by the parties for determining whether this agreement has been so approved discloses that it has been so approved.” The reason we included this subsection is that we are very cognisant the fact that in many employment situations for a long time, systems have evolved which have been agreed and which work particularly well. We were very anxious to ensure that where such systems are in place — clearly it would be difficult to specify them in legislation — they could also be used or benefited from in the context of information and consultation. Even under the option in section 8(3)(c), the procedure would have to be agreed by the parties.
I do not see any underlying danger that some cloak and dagger approach might be taken which would undermine the intent or the operation of the Bill. It is sensible to allow for something which we know to be a de facto situation in many companies at present.
During the course of this debate I had grown to admire Senator McDowell in regard to almost everything he said and the cases he made. However, I fear he has lost it in this case. He made a very strong case earlier for subsidiarity and passing responsibility back to closer to where the action is. In this case I think he said he would eliminate approval of agreements by employee representatives majority methods. I would have thought that is exactly what any trade union or employee representative would have wanted. Hence, it seems wrong that the requisite flexibility is not being provided here. The Minister of State's wording is quite correct and I support his comments wholeheartedly.
One could argue that I am not acting to type in this respect. However, my basic argument is simple. Members are discussing the establishment of a mechanism which will continue for ten or 20 years. My point is that, at the outset of the implementation of that mechanism for information and consultation, it should have the approval of the people to whom it applies, namely, those working in that particular enterprise. That seems to be a simple principle to endorse.
If one accepts that a majority of employee representatives would have an equal entitlement, that assumes that each employee representative represents the same number of people. There is no such requirement in the Bill and it is quite possible that one employee representative might, for example, represent 100 people working in Carlow while another might represent 1,000 people working in Naas. On the face of it, under that subsection they would have equal right to decide whether to accept a particular mechanism. In order to avoid such potential complications, I am setting out a basic principle, namely, that each worker has an equal right to endorse or otherwise an arrangement before it is put in place. From a bureaucratic perspective, it is not asking much to request that a single plebiscite be carried out as a once-off measure to approve the mechanism. Once it is done, it will not need to be repeated.
The final point made by Senator McDowell is interesting. It may well be that because of the situation with undertakings and because there is provision for people in different areas to have slightly different agreements and arrangements, representation will not be pro rata between the various branches and the main part of a company’s operations. On the other hand, it would be a pity to preclude a local arrangement in a branch if it was suitable for its circumstances and agreed by the majority of its employees, if that was beneficial to the company. There is a pro rata provision in the legislation in respect of the provision for trade union representatives.
Senator McDowell's point about the various representatives not necessarily representing the same number is interesting and I had not thought of it. I will examine it to see if has merit. It would be an extremely complex matter to reach some kind of a formula to overcome the problem. For example, there might be one branch with 120 people and another with 20. In that situation, a common sense approach must be taken. However, the Senator has made a point which I had not considered and I will examine the issue.
Possibly, it could become even more complicated. For example, it is possible that a minority of workers in a particular enterprise would be unionised and recognised, would have a system of collective bargaining within the enterprise and would be entitled to nominate someone as an employee representative. They might constitute 20% of the workforce. Effectively, a different system, by way of directly elected representatives, would operate for the remaining 80%. Hence, one could encounter a lack of balance between the different sections of an enterprise. While one could have ten people in a room, obtaining the votes of six of them would not necessarily guarantee that they represented anything resembling a majority of the workforce. This complication is best avoided by simply going directly to the workers and asking them to endorse it.
I want, in so far as it is possible, to maintain flexibility. I will examine the implications of the Senator's proposal, which I had not previously considered. I will see if I can take cognisance of it in some way. Although it will be difficult, if not impossible, to so do, I will examine it.
I am happy to withdraw the amendment in the context of the Minister of State's assurances.
Amendment, by leave, withdrawn.
SECTION 8.
Amendments Nos. 33, 36, 37, 47 and 69 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 33:
In page 8, subsection (1), line 1, to delete "An agreement" and substitute "Agreements".
I propose that the word "agreement" be changed to "agreements". As it stands, the Bill does not make clear whether a suitable arrangement within an employment could consist of separate agreements to cater for diverse groups such as unionised or non-unionised workers in order that there could be collective arrangements or direct arrangements within a company. We must include the term "agreements". The amendment to paragraph 8(2)(d) proposes to change the wording to “applicable to all employees covered by that agreement”. It would be important to do that. Perhaps Senator Quinn will discuss the remaining amendments.
I always have problems when dealing with many different amendments at the same time. I will discuss amendment No. 33.
Amendments Nos. 33 and 34 have already been dealt with.
They have not yet been dealt with.
The Senator should move on to the other amendments.
To clarify, we are discussing amendment No. 33.
Yes, but we must discuss amendments Nos. 36, 37, 47 and 69 at the same time.
We are discussing them together, by agreement, but the Senator may discuss them individually if he so chooses.
Members will be here all day doing so.
I will discuss amendment No. 36 as the point has been made about amendments Nos. 33 and 34. Amendment No. 36 proposes that the term "an agreement" be deleted from section 9 and replaced with the word "agreements", while amendment No. 37 proposes the deletion of "exists" and the insertion of "exist". It is also proposed to insert, on page 9, line 17, after the term "employees", the phase "covered by that agreement".
The phrasing I seek to correct is based on what I believe to be a false assumption, namely, that a suitable arrangement within an employment must necessarily consist of a single unified agreement that applies to everyone in that company. Members touched on this earlier today and in particular circumstances the objectives of the legislation could best be served by having a number of separate agreements to cater for diverse groups. For example, one might have separate agreements with employees at different levels of seniority within a company. In certain circumstances, the company might wish to share more information with those at a relatively senior level than with the general mass of employees. This approach should be welcomed and facilitated in the legislation. This agreement would legitimise such separate arrangements. I stress it would not require them but would merely facilitate them if a company wished to do so. Accepting this amendment would add an element of flexibility to what can happen which would be desirable. I believe Senator McDowell would also support it.
I will also touch on amendment No. 69 which proposes the insertion of the phrase "internal structures" in Schedule 1. This amendment accompanies the proposed amendment to section 10, although I am unsure if I can discuss them together. Senator McDowell made a good point earlier in respect of a company that might have a number of branches with a small number of people working in any one of them. I refer to larger companies with different levels of seniority. It could well be that an employer might wish to share some information with employees at some levels but not with those at other levels. The Minister of State could accept the amendment to change the wording to "agreements that exist" rather than "the agreement". In other words, it might not be simply one agreement but could be a number of agreements. The amendment is logical and sensible and the Minister of State may well be able to support it.
I thank Senators for their views in this regard. There is a considerable overlap with the matters which the House has just dealt with in respect of Senator McDowell's amendment. There is considerable merit in amendments Nos. 33, 36 and 37. Clearly, in view of the point raised previously by Senator McDowell about the pro rata element, I must examine the implications of accepting these amendments more closely. However, I do not have difficulty with them in principle. Clearly, our intention is to have the maximum level of flexibility with the undertaking. I accept Senator Quinn’s point, which is obviously correct. It would be highly unlikely that the same arrangements would be ideal in each of the subsidiary branches. I will consider a suitable wording and will consult with the Parliamentary Counsel. I will return on Report Stage in respect of amendments Nos. 33, 36 and 37.
As for amendments Nos. 47 and 69, I have been strongly advised that they are unnecessary. The points they seek to cover are already adequately dealt with in the text of the Bill.
I thank the Minister of State for his remarks. I would have preferred it if he had accepted the amendments immediately. If, however, his desire is to get the wording exactly right and introduce it on Report Stage, I must accept that.
Amendment, by leave, withdrawn.
Amendments Nos. 34 and 39 are related and may be discussed by agreement.
I move amendment No. 34:
In page 8, subsection (2)(d), line 9, after “employees” to insert “covered by that agreement”.
This is a technical amendment and has been addressed by the Minister of State's previous statement.
These amendments are both technical in nature and the advice of the Parliamentary Counsel is that neither is necessary and clarity would not be improved by accepting them. The points are covered adequately.
Amendment, by leave, withdrawn.
Government amendment No. 35:
In page 8, subsection (3), line 21, to delete "this" and substitute "the".
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.
Amendments Nos. 36 and 37 not moved.
Amendment No. 38 is a Government amendment. Amendments Nos. 40 to 44, inclusive, are related; therefore, amendments Nos. 38 and 40 to 44, inclusive, may be discussed together by agreement.
Government amendment No. 38:
In page 9, subsection (1), to delete line 12 and substitute "section, the employer is not obliged to comply with a request undersection 7.”.
With the exception of Senator O'Toole's amendment, these are technical in nature. Amendment No. 40 involves a serious change we have discussed in some respects. It would remove some of the options provided by the Bill for approving a pre-existing agreement. This is the three options issue we dealt with in section 8.
We have already held a lengthy debate on this matter. The amendment seeks to reduce the three options to one.
Amendment agreed to.
Amendments Nos. 39 and 40 not moved.
Government amendment No. 41:
In page 9, subsection (3), line 23, to delete "are" and substitute "do so".
Amendment agreed to.
Government amendment No. 42:
In page 9, subsection (3), line 24, to delete "or".
Amendment agreed to.
Government amendment No. 43:
In page 9, subsection (3), line 29, to delete "this" and substitute "the".
Amendment agreed to.
Government amendment No. 44:
In page 10, subsection (7), line 1, to delete "the following" and substitute "reference to the following matters".
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.
Amendments Nos. 45 and 46 are related and may be discussed together by agreement.
I move amendment No. 45:
In page 10, subsection (1), lines 11 to 14, to delete paragraph (b).
It is not my intention to pursue this matter. The amendment would be consequential on removing the trigger mechanism and, as the Minister of State is clearly intending to retain the mechanism, would not be an option for employers to refuse to negotiate.
Amendment, by leave, withdrawn.
Government amendment No. 46:
In page 10, subsection (1), line 15, after "agree" to insert "to the establishment of an information and consultation arrangement".
Amendment agreed to.
I move amendment No. 47:
In page 10, subsection (1), line 18, to delete "Consultation Forum"' and substitute "Information and Consultation Forum internal structures, in accordance with Schedules 1 and 2,”.
I am unsure whether this amendment should have been discussed with amendment No. 33 as it deals with section 10 and is dependent on the Minister of State's expressed view on that section.
This amendment aims for more precision. The issue here is the internal structure of an information and consultation forum rather than the actual forum itself. It would be a healthy change and would lend clarity. Will the Minister of State consider the amendment?
This is one of the provisions we examined closely. The legal advice is that there is already a clear link with Schedules 1 and 2, which Senator Quinn is trying to achieve in this instance. It would be superfluous to make this amendment to section 10 now.
Amendment, by leave, withdrawn.
Section 10, as amended, agreed to.
SECTION 11.
Amendments Nos. 48 and 49 are related and may be discussed together by agreement.
I move amendment No. 48:
In page 11, subsection (2), lines 1 and 2, to delete "collective representation" and substitute "to be informed and consulted through their representatives (as defined under this Act)".
I hope no one minds my choice of words but this amendment aims to correct defective wording, as it strays a million miles from both the wording and the intent of the directive we are transposing into law. What is at issue here is not the matter of collective representation, which is a much wider and complicated area that this Bill should not regulate. This legislation would deal with the right of employees to be informed and consulted through their representatives. We should spell this out instead of using what I refer to as inappropriate and misleading language to convey the point. The case for the amendment is a valid one and the Minister of State should take it into account.
We originally intended to discuss this amendment with amendment No. 3 and I am experiencing difficulties chasing down my notes. Section 11 provides that employees can change from direct involvement to a system of collective representation. We have discussed many of the arguments on that matter, such as the 10% trigger mechanism. Once 10% or more of employees request something, a majority of employees must then approve a change from a direct involvement system to a collective representation system. The majority referred to is the majority of those employees in the undertaking who are operating under the direct involvement system.
This approach ensures a minimum number of employees support a change from a direct involvement to a system of collective representation while the trigger of 10% is sufficiently low to ensure employees are not hindered in making the request. There are other safeguards in the form of the Labour Court and so forth. The Bill makes it an offence for an employer to fail to put in place a collective system. The amendment as proposed does not improve the situation in this regard. If anything, it could considerably worsen it. Advice I have received is that the approach taken in the Bill is better.
I wanted to hear the Minister of State's answer before I made it easy for him to say the Members disagree with each other and that, as he is in the middle, he will keep the Bill as is. We have obvious difficulties in so far as Senator Quinn is seeking to make it more difficult for people to move from direct involvement to collective representation, whereas we do not believe there should be direct involvement in the first place. There should only be a system of collective representation.
I do not quite understand what direct involvement means. Will the Minister of State give examples of where he thinks direct involvement works well? Perhaps it is an old-fashioned notion but my idea of consultation involves at least two people sitting in a room with one giving information, the other receiving it and then both discussing it. The Minister of State may say this could be exercised by someone sending out an e-mail or newsletter but if we set the threshold this low and say that sending an e-mail twice a year to employees is sufficient by way of information, we render the entire Bill meaningless.
I am interested in hearing about examples where the Minister of State considers that direct involvement amounts to best practice and why he considers it so. It is not unreasonable to require direct face-to-face involvement and if there is direct face-to-face involvement — clearly it cannot be achieved with everybody — it must be done on a representative basis.
It is worthwhile reminding ourselves that the aim of this directive is to promote social dialogue between management and labour. I do not understand Senator McDowell's arguments regarding direct involvement.
Senator White must address her remarks through the Chair.
The wording in the Bill regarding the meaning of the term "collective" is defective and the directive does not mean to be so blunt. We know what the term means and believe that the amendment is more in line with the directive.
The central point made by Senator McDowell relates to the discussion we had earlier on the definition of consultation when I said very clearly that sending out an e-mail or a newsletter does not meet the requirements of the definition in this regard. Part of the difficulty in this section lies in the question of using direct involvement or having representatives. The Bill strikes a very fair balance in that it provides for direct involvement up to the point where people are dissatisfied with it and opt for the representative model.
What does direct involvement mean? Could the Minister of State give me an example of good direct involvement?
The companies which have been under the strongest attack appear to have made considerably better efforts than many other companies to make information available to their employees. Perhaps in the past they tended to do so almost exclusively or to great extent through one method of delivering information. This will clearly not meet the requirements of this directive. There is now a requirement for a consultation element. These companies have largely operated a system of information that is considerably more open than many of their counterparts. It does not seem as difficult a challenge for them to move one step forward and to have a system of consultation as well as information as it might be for companies with no tradition or culture of disseminating information to their employees.
It is very difficult to prescribe a model that could be used across a range of companies and I am not in a position to do so. I am more than satisfied that such a model could be invented within a workplace and operate extremely successfully, either through the direct involvement model or the representative model. We have provided for this in the legislation, which meets the requirements of the directive and seems to reflect the requirements of the very diverse workplaces operating in this country in the best and most open and sensible way.
I agree that direct involvement does not mean sending out an e-mail or a newsletter. However, it could involve sitting down once a week with employees. Senator Quinn spoke about a meeting he had with his staff last week. Direct involvement could involve meeting with employees in a staff canteen and the management engaging socially in dialogue with staff to resolve any misunderstandings or explain company policy or performance. As the Minister of State noted, there is no particular model but it is about meaningful discussions for the good of the staff, management and the company. The aim is that the company grows and ideally provides more employment. Direct involvement can take many forms, depending on the size of the company. I am simplifying matters excessively.
The difficulty will arise with large companies. The minimum number of employees we are talking about is 50. I do not have a problem with the canteen meetings that Senator White described but it will not be practical to hold them in larger undertakings. It will not be possible to hold a fireside meeting with several thousand employees of Microsoft. The normal way such a company would choose to consult with its employees would be on a pyramid basis, which involves an employee's line manager talking to him or her if there is a particular problem affecting his or her part of the employment. My difficulty with this is that it is not very transparent; it is almost on a one-to-one basis. It is not possible to find out what has been said, the process is not very prescriptive and it is impossible to ascertain if everyone is getting the same information or standard of information. This is why it is so much easier to provide that it should be done on a collective or representative basis that we can set out.
There is not much point in providing for a representative structure, as we do elsewhere in the Bill, if we do not insist that it be invoked for the purposes of consultation. I am pleased by the Minister of State's assurance that it will not be sufficient to simply send an e-mail and tell employees to contact the human resources manager if they have any views on it. It would not surprise me if some companies thought this was adequate by way of consultation. It is important that it is put on the record of this House and the other House that this is insufficient. I ask the Minister of State to go further because, at the very least, it is necessary that there be at least two people on a representative basis within four walls talking about a particular issue and that there be a mechanism of talking and listening which does not simply involve exchanging e-mails.
It is possible to hold meetings with 50 or 60 people. They could be held in boardrooms in the case of small companies. Regarding the question of larger companies and the pyramid model described by Senator McDowell, there are master's degrees in human relations and personnel courses that people pursue in larger companies to learn to engage directly and appropriately with employees. No company, other than the few rogue companies, is self-destructive. Companies wish to engage with their staff in the most direct and transparent way possible and clear up any misunderstandings.
Senator McDowell makes direct involvement out to be more of a problem that it is. This is probably the fifth time I have spoken about a visit I made to the US for four months in 1980 to examine how multinationals ran themselves. I wrote back to the National Building Agency, where I worked at the time, that there was more socialism in US multinationals than we dreamt about in Ireland because the US companies did not take a "them and us" approach. Unfortunately, the management style in many indigenous companies in the past was based on the British style of management, which, as I have said before, involved a them and us approach, including the provision of separate canteens and car parks for management and staff. I still see evidence of separate car parks for management and staff, not necessarily in businesses. We now have an American model of management, which is much more open and stresses togetherness, rather than the antagonistic, class-based relationship between management and staff that was characteristic of the British model.
Senator McDowell is right to seek to establish exactly what is involved in consultation. The definition of consultation is "an exchange of views and establishment of dialogue". Senator McDowell's central point is that consultation must be active, which is what is intended in this instance. My ignorance about possible models has been ameliorated somewhat because I have just received some research from the National Centre for Partnership and Performance, which contains some interesting examples that I would never have thought about. It could include an amalgam of some or all of these models. It could include employee briefings; team, business unit or department level large-scale staff meetings; interdepartmental meetings; organisation-wide breakfast or lunch briefings; management chain; information cascades; performance reviews; training or development reviews; employee appraisals; 360 degree systems; one-to-one meetings; attitude and employee surveys; and suggestion schemes. That is an entire range of schemes. However, no matter what it is, it must meet the requirement that it be an active two-way process. In view of the diversity in experience of practice in the country, it is advisable that this legislation allow the existing models to be developed, and to provide for the representational model if the day comes that a number of employees are dissatisfied.
I am impressed with what the Minister of State said. He left out one very popular type of communication, known as the "huddle meeting", whereby people meet in huddles. It is marvellous way of communicating with colleagues in a company. It has had great success throughout the world. Wal-Mart, one of the biggest companies in the world, uses the huddle as a system of two way communication in Britain.
The aim of the legislation is exactly right. I would have preferred to strengthened it with the words I suggested, "to be informed and consulted through their representatives (as defined under this Act)" instead of using the phrase "collective representation". As long as it is left open to include direct communication rather than limited to a requirement to appoint and deal with a representative, the employee representatives can deal directly with the employer. It is important not to push this in a direction that forces them to do it through somebody else.
We have exhausted the debate on this amendment.
We have exhausted the debate but I thank the Minister for the list. It is helpful and instructive. I am acquainted with the practice of appraisals and performance on an annual basis between managers and line workers. Is that sufficient to meet the requirements of the Act? If we are discussing the interests of one particular worker, then dealing with his or her immediate manager is well and good. However, if we are discussing a much broader picture in which an entire enterprise is affected, such as if a multinational corporation relocates, does this mean that information must be transmitted on a one-to-one basis from each line manager to each individual worker? Will there be a requirement to gather worker representatives and explain plans to relocate or downsize to them? It is perfectly appropriate to deal with some information on a one-to-one basis, but broader information must be dealt with between employers and representatives of the workforce.
I should have acknowledged the role of the NCCP in preparing this information. It has done considerable work and I thank it. My impression is that it would not be confined to annual meetings. We will have a row about how many meetings should be held later. In my view, the system to operate with regard to individuals would not be confined to a single process. It seems far more likely that it would be conducted at department or team unit level, or perhaps in a "huddle meeting" as mentioned by Senator Quinn. It is important that we do not underestimate the value of these systems. They have a positive role to play. We must also clearly state at this juncture that it will not be sufficient to implement a pie in the sky proposal that hardly ever happens. This legislation contains clear consultation requirements which must be met. If they are not met it is open to the employees to take the other route.
Amendment, by leave, withdrawn.
Amendment No. 49 not moved.
Question proposed: "That section 11 stand part of the Bill."
I do not wish to pursue the argument any further.
Question put and agreed to.
SECTION 12.
I move amendment No. 50:
In page 11, line 19, after "When" to insert "preparing for or entering negotiations or".
This is a simple amendment and I will not speak on it for too long. It extends the scope of this section in an effort to require the parties to act reasonably and is worthy of consideration. It would be a helpful addition to the Bill.
The amendment seeks to impose an additional obligation on the parties to work in a spirit of co-operation when preparing for or entering negotiations as well as when defining or implementing the practical arrangements for information or consultation. We all certainly would wish it were the case, but the legal advice I received suggests it does not strengthen the legislation; it is unnecessary, it is considered unlikely to add much to the process and goes beyond the requirement of the directive.
I will take the Minister of State's word for that.
Amendment, by leave, withdrawn.
Question proposed: "That section 12 stand part of the Bill."
I know section 12 is lifted from the directive and that is fine but it is merely aspirational in effect as there is no penalty if people do not observe this section and no way of enforcing it. Perhaps I am wrong about that.
Section 12 states:
When defining or implementing practical arrangements for information and consultation under this Act, the employer and one or more employees or his or her representatives (or both) shall work in a spirit of co-operation, having due regard to their reciprocal rights and duties, and taking into account the interests both of the undertaking and of the employees.
It is not unreasonable to state it is somewhat aspirational. However, it is fair to point out that various aspects of the legislation provide for matters to be referred to the Labour Court. I proposed a new provision which we have not discussed yet, which provides that when internal systems to resolve issues have been exhausted, the Labour Court may involve the LRC prior to making a determination. That moves it from being aspirational to being more practical in terms of achieving an agreed outcome.
Question put and agreed to.
NEW SECTION.
Amendment No. 51 is a Government amendment proposing the insertion of a new section.
Amendment No. 51 is in my name.
The amendment is in Senator McDowell's name; it is not a Government amendment.
I move amendment No. 51:
"In page 11, before section 13, to insert the following new section:
13.—(1) An employer shall not do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her well being in relation to the performing of his or her functions as an employee representative in accordance with this Act.
(2) An employee representative shall be afforded any reasonable facilities, including paid time off, that will enable him or her to perform his or her functions as employees' representative promptly and efficiently. Employee representatives will also, subject to the provisions of section 14, have the facility to avail of the assistance of experts and such experts may accompany the employee representative to meetings of the employee forum when requested. Following the passing of this Act and no later than six months following its enactment, the Minister following consultations with representatives of employers and workers will make regulations setting out the minimum facilities to be afforded to employee representatives by their employers.
(3) An employee, a trade union, an excepted body on behalf or with the consent of the employee may present a compliant to a Rights Commissioner that the employer has contravened subsection (1) in relation to an employee.
(4) A complaint under subsection (3) shall be presented by giving notice of it in writing to a Rights Commissioner.
(5) Where a complaint is presented to a Rights Commissioner under subsection (4) the Rights Commissioner shall
(a) give the parties an opportunity to be heard and to present any evidence relevant to the complaint;
(b) give a decision in writing in relation to the complaint;
(c) communicate the decision to the parties; and
(d) furnish the Court with a copy of the decision.
(6) A decision of a Rights Commissioner under subsection (5) shall do one or more of the following:
(a) declare that the complaint is or, as the case may be, is not well founded;
(b) direct that the conduct, the subject of the complaint cease;
(c) require the respondent to take such action as in the opinion of the Rights Commissioner is just and equitable in the circumstances and which may include the payment to the complainant of compensation of such amount which in the opinion of the Rights Commissioner is just and equitable but not exceeding 2 years remuneration in respect of the employee’s employment.
(7) A complaint under this section may not be presented to a Rights Commissioner after the end of the period of 6 months from the occurrence or, as the case may require, the most recent occurrence of the conduct to which the complaint relates.
(8) Notwithstanding subsection (6), a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (6) but not later than 6 months after such expiration, if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
(9) Proceedings under this section before a Rights Commissioner shall be conducted otherwise than in public.
(10) A Rights Commissioner shall maintain a register of all decisions made by him or her under this section and shall make the register available for inspection by members of the public during normal office hours.
(11) A party concerned may appeal to the Court a decision of a Rights Commissioner under section 5 and if the party does so, the Court shall
(a) give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal,
(b) make a determination in writing in relation to the appeal affirming, varying or setting aside the decision, and
(c) communicate the determination to the parties.”.
This amendment rewrites section 13 but retains the bulk of what is included therein. I will point out the major changes proposed. The amendment includes the word "paid" before "time off". This section obliges employers to give employee representatives time off to discharge their duties and to attend meetings. It is useful to clarify that any time off which employees might get would be paid and replace the phrase "time off" with "paid time off".
The amendment also seeks to expand on the reasonable facilities and help that may be provided to representatives in order to assist them discharge their responsibilities under the Act. The amendment states employee representatives should be able "to avail of the assistance of experts and such experts may accompany the employee representative to meetings of the employee forum when requested". This touches on another issue we discussed earlier. We strongly feel that employee representatives should be entitled to avail of expert assistance. Let us be blunt and straight up on this and state that in some cases that would involve the assistance of trade unions or assistance provided by trade unions, be they accountants or otherwise. It is unreasonable to insist, as the construction of the Bill does, that employees from a particular workplace would be required to attend meetings blind and without assistance. In many cases, they will not have the expertise to make sense of lists of figures regarding profitability and so on. It is important that employees representatives be given the facility of bringing experts with them, for example, to any meetings which might take place in the context of this consultation.
We also thought it was appropriate to expand a little further on the redress that might be available in cases of victimisation. The section states that individual workers who are party to this process should not be victimised but it does not go on to say what will happen in circumstances where there is a complaint. In subsections (5) and (6) we have set out a mechanism whereby a complaint can be made to a rights commissioner who, in turn, can make a recommendation. The Minister of State may respond that the existing legislation already provides for a mechanism in case of victimisation. We would be happy to see that replicated, as we felt it might be necessary to put it into this Bill. However, if the Minister of State can assure me that those provisions will apply in cases of victimisation under this Bill, well and good.
I wish to clarify something. I thought amendment No. 51 was a Government amendment when, in fact, it is an Opposition amendment in the names of Senators McDowell and O'Toole. I now call Senator Quinn after which the Minister of State may respond to the points raised.
This amendment is an excessive overreaction to what is a relatively inconsequential issue and it should not be considered. It is unlikely that when a forum has been agreed with the employees that an employer would subsequently act at that forum in a way that would adversely affect the well-being of an employee representative. I cannot say it too often. This is not negotiation. We are discussing an information and consultation forum. We are discussing the principle. I do not understand why those who moved the amendment would seek shadows and pitfalls where none exists.
Moreover, the amendment seeks to introduce the role of expert into the proceedings. I can understand Senator McDowell's point about people not understanding figures in the context of negotiations, but when it comes to consultation and information it would be damaging to our ability to compete in the marketplace if we are the only country in Europe that is insisting on outside experts being able to fulfil the employee representative role. It goes against all the rules of common sense to have so-called outside experts brought in for the purpose under discussion.
I began my contribution today by referring to my experience yesterday of reading that advertisement from Austria. We are in competition with other countries that are all going to incorporate the terms of this directive. Let us make sure the directive is not put through in such a manner that it inhibits others who are likely to come here to set up business. We must make sure this is an attractive place to carry on a business while holding on to everything we are doing. What is proposed here follows the directive. The directive can be adopted without being hindered by what is proposed in the amendment.
I am totally opposed to the concept of what is proposed here although I understand the good intention of those who proposed the amendment, Senator O'Toole and Senator McDowell. It reminds me of what happened in France when a 35-hour week was proposed to overcome unemployment problems. The 35-hour week did not work and now there is a far higher unemployment than was the case before. While the intention may be good in many of these things, the end result is just not workable. I am totally opposed to the concept proposed here. The amendment foolishly introduces an adversarial context in an area where information and consultation is concerned. Relations may well be adversarial in the context of negotiations but not in the forum with which we are concerned, where the purpose is information and consultation. The amendment should be rejected.
Section 13, as drafted, makes it an offence for an employer to penalise an employee representative for performing his or her functions under the legislation and that is fair and reasonable. A code of practice already exists with regard to employee representatives. Strong penalties are imposed for this type of offence, including up to three years' imprisonment on conviction and indictment. The section specifies the circumstances in which penalisation of an employee representative could occur. Senator McDowell and others would say the Bill has no teeth if that provision was not there. It must be there.
Some Members complained on Second Stage that the penalties in this regard are excessive. I do not accept that is the case either. It is important that we bear in mind that a code of practice already exists in regard to employee representatives, which is most useful. I will look at the ones which cause concern to Senator Quinn in advance of Report Stage. In general, the original section 13 deals in a sensible fashion with any difficulties that might arise. The key ones appear to be more than sufficient to deal with the circumstances as envisaged.
Does the Minister of State have any difficulty with including the word "paid" before "time off"?
It is one of the areas I am prepared to examine but I do not promise anything.
Does the Minister of State have any difficulty spelling out the facilities that might be given to employee representatives?
If I were being facetious I would suggest that I have no difficulty, as it will be my successor who will do it. However, that area is quite fraught and difficult. I would be most reluctant to leave it as a legacy for a successor. I do not consider it to be a central issue in regard to the operation of the information and consultation system. I would be most reluctant to go that route.
If the Minister of State is considering the area of paid time off, he should be careful about it because it can be abused and has been abused in the past. The vast majority of employers recognise that if their employees are attending a meeting that they would be paid during that period. They would not be expected to do it at a time when they were off duty. It would be a dangerous precedent to enforce this in law.
Amendment, by leave, withdrawn.
Sections 13 and 14 agreed to.
SECTION 15.
Amendments Nos. 52 to 62, inclusive, are related and will be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 52:
In page 12, lines 28 to 42, to delete subsection (1) and substitute the following new subsection:
"(1) Disputes between an employer and a trade union or excepted body or his employees or his or her representatives concerning:
(a) negotiations under section 8 or 10,
(b) interpretation or operation of any agreement under section 8 or 9,
(c) interpretation or operation of the Standard Rules set out in Schedule 1 or the procedures for election of employees’ representatives set out in Schedule 2, or may be referred by the employer, a trade union or excepted body, one or more than one employee or his or her representatives (or both) to the Court for investigation.”.
Amendment No. 52, if accepted, would have deleted the requirement to go through the internal mechanisms before going to the Labour Court. To be honest, I have thought again about this and I have decided not to press the issue.
Amendments Nos. 56 and 58 are also in my name. There is one essential point in these amendments, namely, that they would allow a trade union to refer disputes to the Labour Court. The section as currently drafted, as far as I recall, provides simply that the employee or employee representatives would be entitled to do this. We are looking to provide that, in circumstances where there is a trade union, it would also be entitled to refer disputes to the Labour Court for determination. I will not pursue amendmentNo. 52.
I remind Senators that we are discussing amendments Nos. 52 to 62, inclusive.
I wish to speak on amendments Nos. 54 and 57. The purpose of these two amendments is to avoid circumstances in which one employee, even in a case where there is an employee representative, could refer a matter to the Labour Court and to reserve that option only for the direct model where I agree it is appropriate.
Amendment No. 54 states:
In page 12, subsection (1), lines 39 and 40, to delete "one or more than one employee or his or her representatives (or both)" and substitute the following:
"or the majority of employee representatives, or by written request of at least 15 per cent of employees".
Amendment No. 57 states:
In page 12, subsection (2), line 46, after "dispute." to insert the following:
"Where a system of direct involvement operates only, the referral to the Labour Court may be from one or more than one employee after the internal dispute resolution procedure (if any) usually used by the parties concerned has failed to resolve the dispute.".
The purpose of these amendments is solely to avoid circumstances where one employee could make a reference to the Labour Court and to preserve that option only for the direct model. Both are worthy of consideration.
I take it that we are discussing amendments Nos. 52 to 62 together.
Amendment No. 52 is not being pressed by Senator McDowell. It would have involved the deletion of section 11 in any event. Amendment No. 53 requires the insertion of ", subject to subsection (2),” after “may” in page 12, subsection (1), line 39. The amendment was proposed on the advice of the Parliamentary Counsel and it provides a cross-reference to subsection (2), which is amended by amendment No. 55. That cross-reference is necessary.
Amendment No. 54 would remove the right of one or more than one employee or his or her representatives to refer a dispute to the court and would provide that it could be done by a majority of employee representatives or by the written request of at least 15% of employees. The employer's right to refer a dispute would be unchanged under this provision. I am unhappy with the amendment and will return to it.
Amendment No. 55 is to provide for a stage in the dispute resolution process in advance of referral to the Labour Court. This is to allow parties as much support as possible in reaching a voluntary agreement on the issues in dispute. It means the Labour Court will not hear a case referred without first receiving certification from the Labour Relations Commission that no further efforts by it will advance matters. I feel very strongly that it is advisable to make this provision because the Labour Relations Commission has a very good record in this regard.
There is an error in the instructions in this amendment in that "line 45" should read "line 46".
I should have referred to that but the Minister of State has now done so.
Amendment No. 56 seeks to delete to delete section 15(2), which provides that the court can appoint a mediator. However, amendment No. 55 will achieve this, if accepted.
Amendment No. 57 states:
In page 12, subsection (2), line 46, after "dispute." to insert the following:
"Where a system of direct involvement operates only, the referral to the Labour Court may be from one or more than one employee after the internal dispute resolution procedure (if any) usually used by the parties concerned has failed to resolve the dispute.".
Government amendment No. 55 also provides for this interim step involving the Labour Relations Commission. It might meet the requirements of those who proposed amendment No. 57.
Amendment No. 58 follows from amendment No. 56, which seeks to delete subsection (2), which is to be replaced by the new subsection provided in amendment No. 55.
Amendment No. 59 follows from amendments Nos. 56 and 58. It has the effect of removing the reference to "one or more employees" and refers to "disputes between an employer and a trade union or excepted body". I do not propose to accept this amendment either. Amendment No. 60 follows from amendments Nos. 56 to 59. The same applies to this amendment.
Amendment No. 61 proposes, in page 13, subsection (6)(b), line 30, to delete “a” and substitute “any”. It seeks to ensure the subsection does not contradict the procedure set out in subsections (3) and (5). We have discussed this with the Parliamentary Counsel who has advised that an alternative wording may be required. The deletion of “a” and its replacement by “any” may not be sufficient in this instance. I will return to this matter on Report Stage, if that is acceptable to Senator Quinn. I will ascribe the amendment to the Senator — he should not worry.
I am disappointed. I would love to have had one amendment accepted today. I believed the substitution of "any" for "a" would have been the easiest to accept.
It may not deal with an issue it raises. If it does, I will accept it on Report Stage.
Amendment No. 62 is a technical amendment to introduce consistency throughout the Bill. There is no provision for appeals to the Labour Court in the Bill — it provides only for disputes to be referred.
On amendment No. 55, I am proposing a role for the Labour Relations Commission. The purpose of the amendment is to provide for a stage in the dispute resolution process in advance of referral to the Labour Court to allow parties as much support as possible in reaching a voluntary agreement. Disputes under section 15(1) would be referred to the Labour Court only after recourse to the internal dispute procedure usually used by the parties concerned has failed to resolve the dispute, and following a referral to the Labour Relations Commission. This is in line with current processes, as the Senators will be aware.
Amendment, by leave, withdrawn.
Government amendment No. 53:
In page 12, subsection (1), line 39, after "may" to insert ", subject tosubsection (2),”.
Amendment agreed to.
Amendment No. 54 not moved.
Government amendment No. 55:
In page 12, subsection (1), to delete all the words from and including "investigation" in line 40 down to and including "dispute." in line 46 and substitute the following:
"investigation.
(2) Such a dispute may be referred to the Court only after——
(a) recourse to the internal dispute resolution procedure (if any) usually used by the parties concerned has failed to resolve the dispute, and
(b) the dispute has been referred to the Commission which, having made available such of its services as are appropriate for the purpose of resolving the dispute, furnishes a certificate to the Court stating that the Commission is satisfied that no further efforts on its part will advance the resolution of the dispute.”.
Amendment agreed to.
Amendments Nos. 56 and 57 not moved.
I move amendment No. 58:
In page 13, lines 1 to 3, to delete subsection (3) and substitute the following new subsection:
"(3) Where, in the opinion of the Court, a dispute that is the subject of a recommendation under this section has not been resolved, the Court may, at the request of——
(a) an employer, or
(b) a trade union or excepted body, or
(c) one or more employees or their representatives (or both), and, following a review of all relevant matters, make a determination in writing.”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 59 to 61, inclusive, not moved.
Section 15, as amended, agreed to.
SECTION 16.
Government amendment No. 62:
In page 14, subsection (6), line 35, to delete "an appeal" and substitute "a dispute".
Amendment agreed to.
Section 16, as amended, agreed to.
Section 17 agreed to.
NEW SECTION.
Amendments Nos. 64 to 66, inclusive, are consequential to amendment No. 63, and amendment No. 67 is related. Amendments Nos. 63 to 67, inclusive, may be discussed together, by agreement.
Government amendment No. 63:
In page 15, before section 18, to insert the following new section:
18.—(1) In this section ‘inspector' means a person appointed undersubsection (2).
(2) The Minister may, in writing, appoint as many persons as the Minister thinks appropriate to be inspectors for the purposes of this Act.
(3) Subject to this section, an inspector may do all or any of the following things for the purposes of this Act——
(a) enter at all reasonable times any premises or place where the inspector believes on reasonable grounds that——
(i) an employee is employed in work, or
(ii) the work that an employee is employed to do is directed or controlled,
(b) make such examination or enquiry as may be necessary for ascertaining whether this Act is being complied with in respect of an employee employed in those premises or that place or an employee whose work is directed or controlled from the premises or place,
(c) require the employer of an employee, or the representative of the employer, to produce to the inspector any records the employer is required to keep under any other enactment that are relevant to the employer’s obligations under this Act and inspect and take copies of entries in the records (including, in the case of information in a non-legible form, a copy of or an extract from that information in a permanent legible form),
(d) require any person the inspector believes on reasonable grounds to be or to have been an employee or the employer of an employee to furnish such information to the inspector as the inspector may reasonably request,
(e) examine with regard to any matters under this Act any person the inspector has reasonable cause to believe to be or to have been an employer or employee and require the person to answer such questions (other than questions tending to incriminate the person) as the inspector may put relative to those matters and to sign a declaration of the truth of the answers.
(4) An inspector shall not, except with the consent of the occupier, enter a private dwelling (other than a part of the dwelling used as a place of work) unless he or she has obtained a warrant from the District Court undersubsection (7) authorising the entry.
(5) Where an inspector in attempting to exercise his or her powers under this section is prevented from entering any premises, he or she may apply undersubsection (7) for a warrant authorising the entry.
(6) An inspector, where he or she considers it necessary to be so accompanied, may be accompanied by a member of the Garda Síochána when exercising a power conferred on an inspector under this section.
(7) If a judge of the District Court is satisfied on the sworn information of an inspector that there are reasonable grounds for suspecting that information required by an inspector under this section is held on any premises or any part of the premises, the judge may issue a warrant authorising an inspector accompanied by other inspectors or a member of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production, if so requested, of the warrant, to enter the premises (if need be by the use of reasonable force) and exercise all or any of the powers conferred on an inspector under subsection (3).
(8) A person who——
(a) obstructs or impedes an inspector in the exercise of any of the powers conferred on an inspector under this section,
(b) refuses to produce a record which an inspector lawfully requires the person to produce,
(c) produces or causes to be produced, or knowingly allows to be produced, to an inspector a record which is false or misleading in a material respect, knowing it to be so false or misleading,
(d) gives to an inspector information which is false or misleading in a material respect knowing it to be so false or misleading, or
(e) fails or refuses to comply with a lawful requirement of an inspector under subsection (3), shall be guilty of an offence.
(9) Every inspector shall be furnished by the Minister with a certificate of his or her appointment and, on applying for admission to any premises or place for the purposes of this Act, shall, if requested by a person affected, produce the certificate or a copy of the certificate to that person.".
This amendment provides for the appointment of inspectors and proposes the inclusion of a new fairly long section in the Bill, which is similar to other sections in other legislation. It provides power for the Minister to appoint inspectors for the purpose of the Bill. It also lists the powers of the inspectors so appointed and includes the power to make such examination or inquiry as may be necessary for ascertaining whether this legislation is being complied with, the conditions under which they may enter certain premises and require certain individuals to produce information, and require certain records to be produced. This section also makes provision in respect of offences associated with non-compliance.
The amendment is required to provide a mechanism for the Minister to bring and prosecute proceedings for an offence, as outlined in section 19(3) of the Bill, as initiated. This is necessary to allow for the practical steps in the prosecution of such cases by the Minister.
I seek more information on how exactly the Minister of State intends this to work. In many cases where consultation has taken place, there will not necessarily be a large amount of documentary evidence to prove this. There will not be a paper trail, as it were, that might satisfy an inspector. Does the Minister of State intend to have a separate inspector within his Department or will he give this power to people already empowered under various other Acts? How will he ensure that this is more than just a gesture and represents a serious effort to ensure that the Act is fulfilled in its intent?
It was initially believed that sufficient powers were in place to carry out whatever inspections might be needed. Subsequently, it was decided that provision should be made in the Bill to provide directly for inspectors. It is not necessarily the case that an inspector should be provided exclusively for this purpose. However, the advice is that whatever inspectorate is employed would need to have the support of the legislation for the work that arises, however little that might be. In normal circumstances one might expect difficulties as regards information and consultation which might arise to be brought to the attention of the Minister or the Department. In the event of such a complaint, it is necessary to ensure that somebody is in a position to examine the evidence and decide whether a prima facie case exists and whether the requirements of the information and consultation legislation are being adhered to and to report back to the Minister.
How does the Minister of State intend to progress this in practical terms? If the section allows the Minister to appoint in writing as many persons as he or she may deem appropriate, what does the Minister of State intend to do when the Bill is enacted? Does he intend to designate a certain number of inspectors within the Department with responsibility to do this or will he simply react to any complaints that may be received?
This, as already stated, will initially serve as an enabling provision. It will allow the Minister of the day to designate officers to follow up complaints that might be made as regards the information and consultation requirements. At this stage, I am not in a position to say exactly what this might entail. However, it is really important to provide for it in the legislation so that the Minister of the day will be in a position to appoint or issue warrants to people charged with this responsibility. That is all we are attempting to do at this stage.
This is really only in place if the need arises.
Amendment agreed to.
Section 18 agreed to.
SECTION 19.
Government amendment No. 64:
In page 15, subsection (1), line 22, after "section 18”, to insert “or 18”.
Amendments Nos. 64 to 67, inclusive, are technical and ensure that offences provided for in the new section 18 are linked to the penalty and prosecution proceedings provided in the rest of the Bill. They arise from the provisions of section 18.
Amendment agreed to.
Government amendment No. 65:
In page 15, subsection (2), line 30, after "section 18”, to insert “or 18”.
Amendment agreed to.
Government amendment No. 66:
In page 15, subsection (3), line 36, after "section 18”, to insert “or 18”.
Amendment agreed to.
Government amendment No. 67:
In page 15, subsection (3), lines 37 and 38, to delete "for Enterprise, Trade and Employment".
Amendment agreed to.
Section 19, as amended, agreed to.
NEW SECTION.
Amendment No. 77 is consequential on amendment No. 68 and the two may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 68:
In page 15, before section 20, to insert the following new section:
20.—(1) For the purposes of this section—
‘Council Directive' means Council Directive No. 2001/23/EC of March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertaking, businesses or parts of undertakings or businesses;
‘Regulations' means the European Communities(Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003);
‘transfer' means the transfer of an economic entity that retains its identity;
‘transferee' means any natural or legal person who, by reason of a transfer within the meaning of the Regulations, becomes the employer in respect of the undertaking, business or part of the undertaking or business;
‘transferor' means any natural or legal person who,by reason of a transfer within the meaning of the Regulations, ceases to be the employer in respect of the undertaking, business or part of the undertaking or business.
(2) A word or expression that is used in this section, and which is also used in the Council Directive or the Regulations, as appropriate, has, unless the context otherwise requires, the same meaning in this section as it has in the Council Directive or the Regulations, as appropriate.
(3) The transferor shall notify the transferee of all the rights and obligations, arising from a contract of employment existing on the date of a transfer, which will be transferred to the transferee, so far as those rights and obligations are, or ought to have been, known to the transferor at the time of transfer.
(4) A failure by the transferor to notify the transferee of any such right or obligation shall not affect the transfer of that right or obligation and the rights of any employees against the transferee or transferor in respect of that right or obligation.
(5) If——
(a) a failure of the foregoing kind consists of a failure to provide information or documents to the transferee the provision of which is necessary in order for the transferee to fulfil an obligation of the transferee owed to an employee,
(b) the transferee is, in proceedings finally determined under the Regulations, required by a decision of a rights commissioner or a determination of the Employment Appeals Tribunal to pay an amount of compensation to that employee in respect of a complaint that the transferee has not fulfilled that obligation, and
(c) the transferee has paid that amount of compensation to that employee,
then, subject tosubsection (6), the transferee has a right of action in any court of competent jurisdiction to recover from the transferor such proportion of that amount of compensation as the court determines to be attributable to the failure of the transferor to provide the information or documents concerned.
(6) An action undersubsection (5) shall not lie unless it has been preceded by—
(a) service of a notice in writing on the transferor—
(i) indicating, in everyday language—
(I) the particular obligation the transferee considers he or she owes to one or more employees of the transferee, and
(II) the class of information or documents that the transferee believes may be in the possession or under the control of the transferor (and which is not also in the possession or under the control of any of the employees of the transferee), being information or documents of a class which the transferee considers an employer must possess in order to fulfil the obligation concerned,
and
(ii) requesting the transferor to provide to the transferee, within a specified period (not being less than 21 days beginning on the date of the service of the notice), information or documents falling within that class of information or documents,
and
(b) compliance by the transferee with any reasonable request in writing of the transferor for further details to be furnished to the transferor as to the particular items of information or documents that are being referred to in that notice (and any period which elapses before that request is complied with shall be not reckoned in calculating the period specified in that notice).
(7) An action undersubsection (5) shall, for the purposes of this section and any other enactment, be regarded as an action founded on quasi-contract.’’.
This amendment involves the insertion of a new section 20 and arises from EU Council Directive No. 2001/23/EC of 12 March 2001. It relates to the safeguarding of employees rights in the event of transfers of undertakings or businesses or parts thereof. In all, a total of nine optional provisions arose from that requirement. Only one of these has been agreed with the social partners in respect of transposing it into legislation. We have decided to avail of the opportunity presented by this Bill to transpose that provisional option.
Under a Government commitment contained in Sustaining Progress, the Department was also required to consult with the social partners and revert to Government for decisions on whether to transpose all or any of the optional provisions. This consultation process was carried out last year and I am finalising a memorandum for Government on the other optional requirements. This requirement has been agreed and I thought it sensible to include it at this stage.
Amendment agreed to.
Section 20 agreed to.
SCHEDULE 1.
Amendment No. 69 not moved.
Amendments Nos. 70 and 71 are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 70:
In page 16, paragraph 2(1)(a), lines 20 to 23, to delete all words from and including “but” in line 20 down to and including “representatives” in line 23.
Amendment No. 70 proposes to delete the words after "representatives" in line 20 because they are superfluous and unnecessary. It is a matter of conciseness rather than anything else. This means removing the phrase "but the employer may not unreasonably withhold consent to proposals made by employees or their representatives". It is not necessary to say that and the Bill would be improved by taking it out.
I will address the amendment in my name and that of Senator O'Toole. Schedule 1 provides for the default mechanism. It provides for the standard rules in circumstances where there is not another negotiated in-house arrangement. Our amendment simply provides that the forum should meet a minimum of four times rather than twice a year. It appears that twice a year is a pretty perfunctory requirement. If it is to develop any animus of its own or means of doing its work, the requirement of quarterly meetings is not unreasonable. I ask the Minister of State to consider that.
Needless to say, I disagree with the amendment proposed by Senator Quinn. It is all well and good to provide that arrangements shall be agreed but if they are not, what can be done? The section, as currently drafted, gives some assistance by at least providing that the employer cannot unreasonably block agreements on arrangements or proposals made by employees.
The Senators are somewhat at odds as regards the two amendments. On amendment No. 70, the Bill imposes an obligation on employers not to unreasonably withhold consent to proposals from employees as regards the forum's meeting arrangements. That ties in with Senator McDowell's requirement that they should meet more frequently than twice a year. On that point, a key qualification is that in exceptional circumstances extra meetings can be requested and should not be unreasonably refused by the employer. The Bill strikes a very reasonable middle ground. In the spirit of co-operation provided for in the directive and the proposed legislation, it is incumbent on employers to seriously consider all requests from employees regarding meeting arrangements. I certainly cannot accept amendment No. 70 in that regard.
As regards amendment No. 71, the intention there is clearly provided for in the Bill and it is open to the parties to increase the number of meetings, depending on the particular needs of the undertaking and its employees. It is sensible to allow some leeway in that regard and I do not believe it presents any difficulty when particular meetings are sought on issues, as will be the case from time to time.
The provisions of the Bill are most important in the case of crisis management, significant problems or impending difficulties. I fully accept that when a major problem arises, it is open to employees or their representatives to request a meeting. Is it not sensible to provide for a regular flow of information to ensure that the onset of a crisis does not become a precondition for a meeting taking place? The ethos behind the Bill suggests that information should flow on a regular basis. In that case, it is not sufficient to hold two meetings per annum. We are dealing with two easily distinguishable, albeit not entirely distinct, issues, namely, crisis management and ordinary day-to-day or month-to-month flow of information. If information is to flow on a regular basis, meetings must be held more than twice a year.
It is important to bear in mind that the Bill provides for methods of disseminating information and receiving feedback other than meetings. I regret it is necessary to include a provision requiring that two meetings be held each year because it is unduly prescriptive and runs counter to the ethos we are trying to create in the workplace. It is not unreasonable to qualify this requirement by including a provision regarding meetings to be held in unusual circumstances, nor is it unreasonable to require an employer to accede to requests for a meeting when employees have a concern.
While I agree with the Minister of State to some extent, the difficulty is that the requirement to hold a minimum of two annual meetings will result in twice-yearly meetings becoming the norm. Perhaps it would have been preferable to stick with a formula which would allow regular meetings to be held, rather than prescribing a specific number of meetings. Having opted to prescribe, I hope two meetings per annum will not become the maximum number or the norm.
Perhaps the inspector likes the number.
Amendment, by leave, withdrawn.
Amendment No. 71 not moved.
Government amendment No. 72:
In page 17, to delete lines 13 to 16 and substitute the following:
"by the Protection of Employment Order".
Amendment agreed to.
I move amendment No. 73:
In page 17, paragraph 4(2)(e), line 41, to delete “powers.” and substitute “powers to raise within the timeframe at paragraph (a), and within the competence to respond within the rationale required at paragraph (d).”.
The purpose of the amendment is to seek protection for management in companies in Ireland where immutable decisions are taken at a head office in another country. In such circumstances, it is necessary to restrict the role of management to areas in which they have competence. The head office of an organisation at which decisions are made and from which instructions are issued to local management may well be located abroad. On that basis managers in Ireland will not have control of company activities and will act as they are obliged to act. For this reason, it is reasonable to include the proviso that managers in such circumstances act "within the competence to respond within the rationale required at paragraph (d)”. The sole purpose of this amendment is to ensure the legislation takes account of the fact that in some cases company decisions are taken abroad.
I acknowledge the concerns raised regarding the provision of information and consultation on matters which do not fall within the direct competence of Irish management. It is interesting that the directive owes its origins to cases of this nature which arose in Belgium involving a French company and France involving a British company. While these cases had transnational implications, they happened to be within the European Union. I have listened carefully to the Senator. As was acknowledged in the House last week, the many advantages flowing from having good quality information and consultation far outweigh the specific weakness highlighted by Senator Quinn. The legislation would be better left in its original form.
Amendment, by leave, withdrawn.
I move amendment No. 74:
In page 17, paragraph 5(2), line 45, to delete "financial resources" and substitute "facilities".
This amendment aims to avoid making too sweeping a commitment and thereby unduly raising expectations. The provision, as framed, is too broad and all-encompassing as it equates to writing a blank cheque. For this reason, substituting the term "financial resources" with the word "facilities" would be helpful.
The purpose of the amendment is to reduce employers' exposure by including a broader definition and thereby avoid the possibility that disputes will arise as a result of a carte blanche presumption by employees.
I should have referred to this amendment when I dealt with an earlier new section proposed by Senator McDowell. The amendment seeks to limit the obligation on employers to provide financial resources to members of the forum to assist them to perform their duties. It is reasonable that the employer provide such financial resources and the requirement does not impose an unduly onerous obligation. The mechanism can only work in this way because no one other than the employer has the relevant information and is in a position to disseminate it. The inclusion of the term "financial resources" meets the requirements of the Bill much better than the word "facilities", which would only cover meeting places and so forth. The risk in the amendment is that it could result in an employer deciding only to make available a canteen or similar facility when much more is required, including the provision of information. The term "financial resources" is much more complete in this regard.
Amendment, by leave, withdrawn.
Schedule 1, as amended, agreed to.
SCHEDULE 2.
Amendment No. 75 not moved.
I move amendment No. 76:
In page 18, paragraph 3, lines 19 to 22, to delete all words from and including "by" in line 19 down to and including "representation." in line 22 and substitute the following:
"on the basis of any appropriate in-house arrangements. In the absence of in-house arrangements voting in the poll shall take place by secret ballot on a day or days to be decided by a returning officer.".
The purpose of the amendment is to widen the scope of polling methods available and leave the proportional representation method as a fall-back. The current provision ties down organisations and is too restrictive. I urge the Minister of State to accept the amendment which proposes to introduce greater flexibility.
It puts me in bad humour to read about polls and returning officers. I am advised the amendment is not necessary. The wording used in the published text has been used in previous legislation, for example, the Transnational Information and Consultation of Employees Act, and has not presented any difficulty. When a mechanism has worked previously one tends to place some faith in it.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
TITLE.
Government amendment No. 77:
In page 3, line 11, to delete "UNDERTAKINGS" and substitute "UNDERTAKINGS, TO IMPLEMENT ARTICLE 3(2) OF COUNCIL DIRECTIVE NO. 2001/23/EC OF 12 MARCH 2001 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE SAFEGUARDING OF EMPLOYEES' RIGHTS IN THE EVENT OF TRANSFERS OF UNDERTAKINGS, BUSINESSES OR PARTS OF UNDERTAKINGS OR BUSINESSES.".
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Next Tuesday, 18 October.
Report Stage ordered for Tuesday, 18 October 2005.
