Employees (Provision of Information and Consultation) Bill 2005: Report and Final Stages.

Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment who may reply to the discussion on the amendment. Also on Report Stage, each amendment must be seconded.

I move amendment No. 1:

In page 4, line 7, 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)".

This amendment speaks for itself, the matter having been discussed on Committee Stage. We are talking about the agency worker being part of the original agency rather than the temporary employer. The Minister of State has covered this issue with his own amendment.

Has the Minister of State addressed this issue with his own amendment?

Amendment No. 1 is not grouped with other amendments.

I second the amendment. As Senator Quinn noted, we debated this issue on Committee Stage. Both Senator Quinn and I fail to see how a person in very temporary employment, particularly an individual who might be employed for one week or a few weeks, could be regarded as an integral part of a temporary employer. I do not see the point of regarding such an employee as part of a temporary employer, however, the Minister of State had his own view on the matter. I incorrectly thought that he had covered this issue himself.

The distinction I drew on Committee Stage was between employees who are on a contract of service and employees who are on a contract for service. Employees on a contract of service tend to be with a company for a very long time. A contract for service tends to be much shorter. This distinction is recognised by the Revenue Commissioners and others and it would be extremely undesirable to exclude people who are long-term employees in a company, even if they are supplied by an agency. This would be the effect of amendment No. 1, which nobody would wish to see happen.

Agency workers can work for the same company for several years and they ought to be entitled to information and consultation. I discussed the matter with the Parliamentary Counsel following Committee Stage and I was assured that what I said on Committee Stage about the distinction between a contract of service and a contract for service was correct. The concern about agency workers outlined by Senators Quinn and Coghlan on Committee Stage and today is groundless.

The point I made on Committee Stage was that an agency worker is effectively part of the original agency and not the temporary employer. However, the Minister of State's explanation has put my mind at rest.

Amendment, by leave, withdrawn.
Government amendment No. 2:
In page 4, to delete lines 30 and 31, and substitute the following:
"‘relevant workforce threshold' has the meaning assigned by section 4;
‘trade union' means a trade union which holds a negotiation licence under Part II of the Trade Union Act 1941, as amended;
‘undertaking' means a public or private undertaking carrying out an economic activity, whether or not operating for gain.".

This is, in effect, the amendment proposed by Senators Quinn, Coghlan and White on Committee Stage. I was concerned about accepting the amendment on Committee Stage because I was unsure whether the wording was what the Parliamentary Counsel would suggest so I undertook to return on Report Stage. The wording in my amendment is slightly different to that of the original but it effectively accepts the amendment proposed by Senators Quinn, Coghlan and White on Committee Stage.

I thank the Minister of State for this amendment, which covers the points that Senators Coghlan, White and I wished to cover, and appreciate the fact that he responded to us with this amendment.

Amendment agreed to.

Amendments Nos. 3, 21, 24, 25, 28 and 59 are related and may be discussed together. Is that agreed? Agreed.

Government amendment No. 3:
In page 4, between lines 34 and 35, to insert the following:
"(3) For the avoidance of doubt, a reference in this Act—
(a) to the negotiation of an agreement establishing information and consultation arrangements or to such an agreement that has been negotiated, or
(b) to an Information and Consultation Forum,
includes, unless the context otherwise requires, a reference—
(i) to the negotiation of more than one such agreement or, as appropriate, to more than one such agreement that has been negotiated, or
(ii) to more than one such Forum.
(4)Subsection (2) is without prejudice to section 11(a) of the Interpretation Act 1937.”.

A very similar amendment was tabled by Senators Quinn, Coghlan and White on Committee Stage and I promised to return on Report Stage. The other amendments arise from the acceptance of amendment No. 3 and have the same effect. This amendment clarifies that employers and employees can agree on more than one information and consultation agreement. This situation tends to arise when there are very different kinds of employment in the one location or, more likely, when a company had several sub-offices. I am advised that the wording of the amendment meets the necessary requirements.

I thank the Minister of State for his response. It appears that he has dealt very efficiently with the issues in amendments Nos. 3, 21, 24, 25, 28 and 59.

I equally appreciate the response of the Minister of State.

Amendment agreed to.
Amendment No. 4 not moved.

Amendments Nos. 5 to 8, inclusive, and amendment No. 20 are consequential on amendment No. 9. These amendments may be discussed together. Is that agreed? Agreed.

Government amendment No. 5:
In page 6, line 6, to delete "or".

Amendment No. 5 arises from an amendment tabled by Senators O'Toole and McDowell on Committee Stage. Amendment No. 5 does not quite do what they intended but I was impressed by part of their argument and the Bill is considerably strengthened by the inclusion of this particular amendment, which concerns the right of the employee to get information about the number of employees in an undertaking. It is a reasonable amendment which strengthens the Bill considerably where the original amendment would not have done so. The other amendments arise from amendment No. 5.

I wish to raise a minor point regarding the placing of the reference to the employee's representative in amendment No. 7. It seems to be in the wrong place. If amendment No. 5 does not resolve the issue we put the cart before the horse. I am being pernickety about this amendment because I would like the Minister of State to take note of it. While it solves the problem, it could be tidied up because the reference is in the wrong place. I understand what the Minister of State wishes to achieve, and he is doing so here, but he might consider it again before it goes to the Dáil.

The original proposal would have sought to give trade unions the right to request information on employee numbers. In these amendments I have provided alternate methods besides the narrow one originally available. It is not quite what the Senators seek but it improves the Bill because it gives employees several alternatives for getting effectively the same information.

Senator Quinn is quite right to advert to the fact that it links with section 6. We have checked that with Parliamentary Counsel.

Amendment put and agreed to.
Government amendment No. 6:
In page 6, between lines 6 and 7, to insert the following:
"(b) received under subsection (4) by the Court or a nominee of the Court, or”.
Amendment agreed to.
Government amendment No. 7:
In page 6, to delete line 9 and substitute the following:
"(2) Without prejudice tosubsection (4), following a request from one or more employees or employees’ representatives (or both), the”.
Amendment agreed to.
Government amendment No. 8:
In page 6, line 12, after "employees" to insert "or employees' representatives (or both)".
Amendment agreed to.
Government amendment No. 9:
In page 6, between lines 17 and 18, to insert the following:
"(4) One or more employees may request the Court or a nominee of the Court to make the request referred to in subsection (5) of the employer and to do the other things mentioned therein.
(5) Where a request under subsection (4) is received by the Court or a nominee of the Court, the Court or the nominee shall:
(a) notify the employer as soon as is reasonably practicable that a request under that subsection has been made,
(b) request from the employer details of the numbers of employees in the undertaking during the period referred to in subsection (1), and
(c) issue a written notification to the employee or employees who made the request under subsection (4) confirming the number of employees in the undertaking during the period concerned.
(6) Where the Court or its nominee requests information from the employer under subsection (5)(b), the employer shall provide the information requested not later than 4 weeks from the date of receipt of that request (but that period of 4 weeks may be extended by agreement between the employer and the Court or its nominee).”.
Amendment agreed to.

Amendments Nos. 10 to 14, inclusive, are related and may be taken together by agreement.

I move amendment No. 10:

In page 6, to delete lines 24 and 25 and substitute the following:

"6.—(1) Without prejudice tosection 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.”.

The point in this amendment is that employees' representatives are not read as mandatory in all circumstances. It also aims to ensure that they belong only to their own employers. I am concerned that it might be regarded as mandatory rather than an option.

With regard to amendments Nos. 11 and 12 it is critical not to limit the methods of appointment to a proportional representation election. Many small businesses have their traditional means of appointment and PR is too clumsy for them. I am anxious that the appointment method is not closed off. If one is to have a representative it is not necessary to have a PR election in small companies. The elimination of the word "appointment" would cause me concern. It is critical not to limit the options but to maintain them as they are.

I second the amendment and support Senator Quinn's arguments. He makes an important point about mandatory versus optional provision. His comments in support of small businesses and their different ways of operating are correct.

I have checked with Parliamentary Counsel about the effect of amendment No. 10 which wouldde facto move what is in section 6(3) to the top of that section, 6(1). I am satisfied that what Senators Quinnn and Coghlan are trying to achieve is already the de facto situation.

I was concerned about the equal weight given to election and appointment and would like to have had more time to consider the point. However, that is not quite the issue in these amendments.

We had a long discussion on section 6 on Committee Stage. It could only ever represent the best balance we could achieve between the various interests. For the purpose of information consultation all employees in the undertaking elect or appoint the relevant number of representatives and the representational role is clearly confined to employees in that undertaking. That covers the concern raised in amendments Nos. 11 and 13, which sought to insert "in that employment", which is superfluous.

With regard to amendments Nos. 12 and 14 the Labour Court is a highly respected industrial relations body and it is as safe a place as possible to which to refer a matter of this nature. The concerns expressed in those amendments are not well-founded. We have struck a particularly good balance in a tricky situation with section 6.

I had not realised amendment No. 14 was included in the group but it might be superfluous because it is covered by section 15. It is very rare to prescribe findings for the Labour Court. Would the Minister of State consider that to be unnecessary?

It is open to the Labour Court to take whatever action it deems necessary. It has a great deal of experience in this area and I am more than happy to leave it with the discretion in that instance.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.

For the information of Senator McDowell who has just come into the House, amendment No. 12 was discussed in his absence. It was agreed that we would take several amendments together including this one. However, I might allow the Senator one minute's latitude.

I move amendment No. 12:

In page 6, to delete lines 26 to 28 and substitute the following:

"(2) Subject to the provisions of subsection (3) and Schedule 2 of this Act, the employer shall arrange for the election of an employees' representative under this section.".

I am obliged to the Leas-Chathaoirleach for his indulgence. I apologise for my late arrival, I got caught in the gridlock on the quays which unfortunately is a reality of life in Dublin, even at lunchtime on a Thursday.

I see that amendment No. 14 is also part of this group. It states that if a court finds in favour of a complainant and finds fault with the process of a particular election one of its powers is to order a new election. When we debated this on Committee Stage the Minister of State indicated that he understood this to be an implicit power. I reintroduced it on this Stage because it is not clear to me that it is implicit.

I assume the Minister of State has had the opportunity to reconsider it with his officials and decide what is the position. If he tells me that it is implicit and the power clearly resides with the court I am happy to withdraw the amendment.

I suspect that others have already dealt with amendment No. 12. It specifies that the process should be one of election rather than selection or appointment, the principle being that somebody who represents employees should be elected by them and not simply appointed.

I second the amendment.

Senator McDowell is correct regarding amendment No. 14. I am assured that the Labour Court has full discretion in this area, including the discretion to hold fresh elections. I suppose that may well be the likeliest outcome in any event.

Before Senator McDowell arrived, I pointed out that the principle of amendment No. 12 was interesting. What we have tried to do in transposing the directive is to allow the maximum flexibility. It is also very much in our interests to ensure that whatever local arrangements have traditionally been in place would be invoked on this occasion to ensure that companies embrace the opportunity which this Bill affords them.

Having spoken to many people, I have been made aware of numerous different practices in many places. The Bill would suffer quite badly by the exclusion of "appointed" as it appears right through the Bill. If it were to be deleted on one of the occasions, or altered, it would have to be altered elsewhere, so it would not be practicable to do so in this instance. It is clear that "elected" is the first choice. We went through this in some detail before, and in situations where people are not offering, the option of "appointment" only then comes into play. That is something I considered since the last occasion and might consider further in the future, but I am happy with the situation as it now stands.

Amendment, by leave, withdrawn.
Amendments Nos. 13 and 14 not moved.

Amendment No. 15 is out of order as it was negatived on Committee Stage.

Amendment No. 15 not moved.

Amendments Nos. 16 to 19, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 16:

In page 7, line 1, to delete "nominee" and substitute "a nominated officer".

I am merely repeating the point made earlier with regard to the trigger mechanism, so that it can avert any mischievous action by a non-representative minority, and is therefore more representative of larger companies.

My concern is that in this area, one crank could delay everything. If an employer employs a large number of people, there is always one crank somewhere along the line. We all know such people exist. That is why we made the argument for a minimum requirement of 15% of employees in the undertaking. The case was well made and I am interested to hear if the Minister for State has reconsidered.

I second the amendment for the reasons Senator Quinn has outlined, in order to overcome anything that might be vexatious. This would create safer practice.

I am not sure if Senator Quinn and I should state our differences once again. For the sake of balance on this one occasion, the amendment in my name which was negatived on Committee Stage and disallowed today seeks to do away with the threshold. It goes without saying that I would oppose any amendment which seeks to make the threshold higher.

The basic principle behind my amendment was simply that this is a facility which should be available. If, for firms of a certain size, it is a good thing to have information and consultation with employees, there should be an obligation on the employers and employees to put the process in place without requiring a threshold to trigger it.

I have had a further look at this matter since the last occasion and have discovered that in Denmark, Germany, Greece, Italy and Spain, a trigger mechanism is provided in such legislation.

The point the Senators make in these amendments is that they would prefer a higher figure. The figure we have used comes from the Transnational Information and Consultation of Employees Act 1996 and is already is use. It appears to have worked particularly well and has not thrown up any difficulties. I would be reluctant to introduce a new formula in this legislation when one in previous legislation has been working particularly well. I am not persuaded that we should change.

I thought that amendment No. 16, which suggests deleting "nominee" and substituting "a nominated officer", would help to clarify the matter, but I take the word of the Minister of State if he believes it is covered. I am willing therefore to withdraw the amendment.

I apologise to Senator Quinn for not referring to amendment No. 16. We had a long discussion about whether a nominated officer would be preferable to a nominee of the court. It seems to me that there are some advantages in allowing the court to have a nominee. Situations arise where there are people of a particular expertise, perhaps, but also particular relations with employers and employees in some companies who might be quite successful in doing something which someone else could not do. On balance, leaving it to the nominee is the better arrangement.

Amendment, by leave, withdrawn.
Amendments Nos. 17 to 19, inclusive, not moved.
Government amendment No. 20:
In page 7, line 15, after "the Court" to insert "or the nominee".
Amendment agreed to.
Amendment No. 21 not moved.

Amendment No. 22 is a Government amendment. Amendment No. 23 is an alternative to amendment No. 22. Amendment No. 26 is related to amendment No. 22 and amendment No. 27 is an alternative to amendment No. 26. Amendments Nos. 22, 23, 26 and 27 may be discussed together by agreement.

Government amendment No. 22:
In page 8, line 11, after "employees" to insert "to which the agreement relates".

I welcome amendments Nos. 23 and 27 tabled by Senators Quinn and Coghlan. My alternative amendments are tabled on the advice of legal counsel. They perform exactly the same function but I am advised this is a better way to deal with the issue.

I thank the Minister of State for responding so accurately. I understand why he is using slightly different words. With regard to amendments Nos. 22, 23, 26 and 27, I appreciate that he listened to us and has taken our views into account.

I thank the Minister of State for taking the matter into account and for dealing with it in his own manner. I accept that he has been assured by his legal advisers that his amendments achieve the same purpose.

Amendment agreed to.
Amendments Nos. 23 to 25, inclusive, not moved.
Government amendment No. 26:
In page 9, line 22, after "employees" to insert "to which the agreement relates".
Amendment agreed to.
Amendments Nos. 27 and 28 not moved.

Amendment No. 29 is a Government amendment. Amendment No. 30 is an alternative to amendment No. 29 and amendment No. 32 is related. Amendments Nos. 29, 30 and 32 may be taken together, by agreement. Is that agreed? Agreed.

Government amendment No. 29:
In page 11, lines 10 and 11, to delete "collective representation" and substitute "to exercise the right to information and consultation through employees' representatives".

A strong case was made by Senators Quinn and Costello with regard to the wording of this section. I am prepared, by means of amendments Nos. 29 and 32, to accept the proposals contained in amendment No. 30.

The wording used in section 11 describes the systems of information and consultation that may exist under the Bill. I am conscious of the importance of being accurate and, on the advice of the Parliamentary Counsel, I propose wording that more closely mirrors the language of the directive and the intentions of Senators Quinn and Coghlan.

I felt that the wording in the Bill was defective with regard to "collective representation" because the directive does not make such a provision. Our intention for the amendment is to align it with the directive. The opt-out criteria should be higher in order to avoid the risk of abuse by minorities. I accept the Minister of State's proposals with regard to amendments Nos. 29 and 30 and his assurance that this issue will be addressed in later amendments.

I concur with Senator Quinn's remarks with regard to mischievous minorities but also accept the Minister of State's proposals.

My advice was that the phrase "to exercise the right to information and consultation through employees' representatives" was a better form of wording than "to be informed and consulted through their representatives" because the former mirrors the directive.

Amendment agreed to.
Amendment No. 30 not moved.

I move amendment No. 31:

In page 11, line 12 to delete "10 per cent" and substitute "25 per cent".

The minimum requirement of 10% of employees in the undertaking provided for in subsection (2) is subject to the approval of the majority of employees to whom the direct involvement system applies. We propose to increase the minimum requirement to 25%. The opt-out criterion should be higher to prevent abuse by minorities. I hope I have presented a strong case to the Minister of State.

I second the amendment.

This matter is similar to the subject of the discussion we held a few moments earlier. As I outlined on Committee Stage, the directive leaves considerable discretion to member states in setting out national procedures. We used this discretion to tailor the legislation to Ireland's workplace culture.

My policy approach in transposing the directive has been to provide maximum flexibility to employers and employees to devise arrangements which best suit their particular circumstances. Regardless of the percentage we propose, the matter is ultimately subject to approval by a majority of the relevant employees. Given that condition, a level of 10% represents a good balance.

Amendment, by leave, withdrawn.
Government amendment No. 32:
In page 11, lines 17 and 18, to delete "collective representation" and substitute "representation through employees' representatives".
Amendment agreed to.

I move amendment No. 33:

In page 11, line 28, after "When" to insert "preparing for or entering negotiations or".

This amendment will require parties to act reasonably. For example, a trade union would not deliberately be able force an employer into a standard rules situation by default. This amendment is worthy of consideration.

I second the amendment.

This amendment refers to section 12 of the Bill, which I have been examining in its entirety. I am satisfied that the section as it stands meets the requirement. I understand what Senators Quinn and Coghlan are trying to achieve but the directive contains broad wording with regard to this area. I am unwilling to tamper with the wording of section 12 because it is already capable of capturing the intent of the proposed amendment.

In light of the Minister of State's confidence in section 12, I withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 35 is an alternative to amendment No. 34 and amendments Nos. 36, 43 to 51, inclusive, and 65 are related. Amendments No. 34 to 36, inclusive, 43 to 51, inclusive, and 65 may be taken together by agreement. Is that agreed? Agreed.

Government amendment No. 34:
In page 11, after line 46, to insert the following:
"(4) An employees' representative shall be paid his or her wages (within the meaning of the Payment of Wages Act 1991) for any period of absence afforded to him or her in accordance withsubsection (3).”.

I made a promise to revisit this issue on Report Stage. A number of amendments were proposed by both sides of the House and an interesting discussion ensued. I have given considerable thought to a number of issues arising from these proposals.

These amendments are grouped because they address the issue of protections given to employee representatives under the Bill. Provision is being made to allow representatives to take paid time off while exercising their functions under the legislation, to provide them with the right to make complaints to a rights commissioner and, in the event of a complaint being upheld, to obtain compensation for any penalisation by an employer with regard to the exercise of functions under the legislation. These changes were proposed by Senators O'Toole and McDowell.

Eleven amendments are required to make provision for the bringing of a complaint because they are consequential on each other. A new schedule, Schedule 3, will be added to the Bill. The grouping of these amendments is the most efficient way of addressing these issues because we will otherwise discuss them out of context. By separating them into distinct units, we will lose the common train of thought that runs through them.

On Committee Stage, Senators O'Toole and McDowell made the point that it would be useful to specify that employers must allow paid time off to employee representatives. Having considered that point, I included it in this format. Clearly, employees should not suffer financial losses for undertaking representative duties. The wording I used in this amendment reflects that used in other relevant legislation, most notably the Transnational Information and Consultation of Employees Act 1996, which has been adapted to link it to the provisions of this Bill for allowing reasonable paid time off to representatives.

The purpose of the other Government amendments in this group is to provide for redress for employee representatives who are penalised under section 13 of the Bill. The Bill already provides that an employer shall not penalise an employee representative and section 19 provides that it is an offence for an employer to do so.

However, Senator McDowell pointed out the need to specify a mechanism in terms of penalisation of employee representatives in these information and consultation arrangements. Arising from Senator McDowell's comments, I am proposing to include a provision which allows for specific steps by which a representative who believes that he or she has been penalised may make a complaint to a rights commissioner. The rights commissioner's decision can be appealed to the Labour Court and the decisions of both rights commissioners and the Labour Court are enforceable by the Circuit Court. Provision is also made for the payment of compensation to employee representatives found to have been penalised.

The number of amendments involved can be explained by the fact that inserting these new provisions affects many other sections and, therefore, many technical adjustments are required in other sections on the advice of the Parliamentary Counsel in order to ensure consistency between the new and existing provisions. We have taken legal advice on that and have been assured that this is the way to do it.

It is worth noting that there are no provisions for redress for employee representatives who are penalised in many key pieces of employment rights legislation. Most do not even provide for the protection of employee representatives. Where such protection exists in the Transnational Information and Consultation of Employees Act, there is no redress provided, nor are there offences or penalties relating to the matter. The 2005 Health and Safety Act provides that an employer shall not penalise an employee for,inter alia, being a safety representative and that the employee has recourse to a rights commissioner, if he or she has a complaint. It is not an offence under the Health and Safety Act for an employer to penalise an employee.

In this Bill we have made strong provision for the protection of employee representatives by making it an offence, with appropriate penalties, if an employer commits a breach. The amendments I propose will provide strong and effective new protections for employee representatives. I was impressed by the case made in this regard and that is the reason I brought forward these amendments on this Stage.

I express thanks to the Minister of State for taking on board much of the content of our amendment No. 35. There are four points in our rewriting of section 13, two of which the Minister of State has fully taken on board. The first relates to paid leave or paid absence from work for employee representatives. As the Minister set out, he has taken that on board and I thank him for that. The more substantial part of the amendment related to the setting out a process for redress in the event that an employee representative was penalised or bullied in some fashion. I am grateful to the Minister of State for also taking that on board.

There were two other points in this amendment in my name and that of Senator O'Toole, to which I assume he is less well inclined. One is the placing of an obligation on the Minister to specify the facilities that should be made available to employee representatives. It should go without saying that if a person is given a responsible position as an employee representative he or she should be given some facility whereby he or she can do the job. We were anxious to ensure that the position would not effectively become meaningless simply by being starved of resources or facilities to do the job. The way in which I chose to approach this was by proposing that the Minister would make regulations specifying the facilities that should be made available to the employee representative.

A second point, on which we had a lengthy discussion on Committee Stage, relates to whether the employee representative should be allowed to call on assistance. This question falls into two categories. In the first instance, and this would apply most often in companies which are already unionised, there is the question of whether an employee representative can call on the assistance of a professional union representative who would be moreau fait with procedures. I argued on the previous occasion, and still do, that this facility should be open to an employee representative to use at his or her discretion. Furthermore, an employee representative should be entitled to call on people with accountancy or with other expertise which might be of use, for example, in interpreting information about the financial position of a company if it were to be tendered at a meeting. Rather than employee representatives going into a meeting with a blank canvass and little expertise, we considered it important that they should be entitled to call on whatever assistance and outside expertise they need.

I thank the Minister of State for having responded positively on two of the points. Between now and when the Bill gets a hearing in the other House he might give some thought to the other points.

The Minister of State listened to the argument made by Senators McDowell and O'Toole for acceptance of their amendment. I do not have a problem with question of paid time off. While that would not have been readily accepted by employers a generation or two ago, it is recognised as being necessary now if this system is to work.

I have a problem with the version of amendment No. 35, but it has been well covered by the Minister of State's wording in Schedule 3. I understand the gist of what the Minister of State is attempting to do. The balance struck takes account of the point — if not wholeheartedly and 100% but sufficiently to recognise the need for it — made by Senator McDowell on Committee Stage. The version the Minister of State inserted in Schedule 3 covers the areas concerned and is probably more efficiently covered than would otherwise be the case.

I accept the balance struck by the Minister of State.

I only spoke about the parts of the amendment in the names of Senators McDowell and O'Toole that I was accepting; there are also the other two elements. The definition of what constitutes penalisation in the Senators' amendment is based on the Industrial Relations (Amendment) Act 2004. The Act provides a dispute resolution mechanism in situations where it is not the practice of the employer to engage in collective bargaining negotiations. It makes provision for complaints of victimisation to be made to a rights commissioner by an employer, a trade union or accepted body or an employer on behalf, or with the consent, of the employee.

The definition of penalisation used in the Bill, as drafted, is based on the code of practice on employees representatives. This was agreed by the social partners and is similar to section 17(1) of the Transnational Information and Consultation of Employees Act 1996. On balance, we have probably captured the essence of what the Senators are trying to achieve.

There is the question of the making of regulations by the Minister setting out the minimum facilities to be afforded to employee representatives and it is considered that provision of this nature is unnecessary. The Minister has power under section 42 of the Industrial Relations Act 1990 to request the Labour Relations Commission to draw up a code of practice concerning industrial relations. The Labour Relations Commission has also the right on its own initiative to draft codes of practice for submission to the Minister. Before submitting a draft code of practice to the Minister, the commission must seek and consider the view of organisations representative of employers and workers and any such other bodies as the commission considers appropriate. I am sure everybody would agree that the LRC has an excellent track record in this regard.

In September of this year we requested the LRC to prepare a code of practice to assist employers and employees in implementing the provisions of the new legislation. I believe that, on balance, people will be very well served between the provisions of the Bill and provisions in the code of practice, which is an excellent piece of work by the LRC.

I accept without question the Minister of State's bone fides on this issue, but unfortunately we must put ourselves in the position of an employee representative who has been appointed because the law requires it and because the required threshold of workers in a particular workplace want it, but the employer does not want to facilitate this process and has no time for it in the first instance. It is not difficult to imagine that if an employer is badly disposed to the idea that he or she will freeze out the employee representative, not give him or her any facilities and refuse to meet a union representative, if there is one, or any additional expert help, if the employee representative wants that. It is in those hard cases that we seek to make some sort of prescriptive arrangement. While it is probably fair for the Minister of State to say that in most cases that will not be necessary, as he said, unfortunately, there are likely to be cases where it will be.

I do not know whether I understand the Minister of State's reply to suggest that he proposes to make some sort of prescriptive directive under the 1990 Act. I take it he probably does not, but I urge him reconsider the issue before the matter comes before the other House. I do not propose to press the amendment.

On amendments Nos. 36 and 65, I would have preferred to have noticed an aspect previously and it is probably too late to insert an amended wording now, but I would like the Minister of State to clarify or even further amend the section, if possible. I refer to page 13, subsection (2), line 43. Would it possible for the Minister of State to add to the text the words "something which cannot be justified on objective grounds"? I would appreciate if he could give some consideration to that. It is probably too late to amend the text now, but I would like to think he could do so.

On amendment No. 65, I would like to clarify the text and to think that it could be amended, although it is probably too late to do so. I think there is a faux pas. I would like to add to subsection 1(1) the words “Such a complaint may be referred to a rights commissioner only after recourse to the internal dispute resolution procedure, if any, usually used by the parties concerned has failed to resolve the complaint”. I am concerned that any person could go to a rights commissioner without even checking what is the internal procedure. I would like the Minister of State to give some thought to this proposed amendment to amendment No. 65. It would strengthen the Bill. I did not notice the need for it earlier. Problems could arise if an internal procedure is in place and someone was to ignore it and go straight to a rights commissioner. I believe it would be better to have that provision stitched into the Bill, in some form or other, and the wording I suggest is that “such a complaint can only be referred to a rights commissioner, only after recourse to the internal dispute resolution procedures, usually used by the parties concerned, have failed to resolve the complaint”. This would strengthen the Bill. I know it is too late to do that now, but I believe it is a mistake to leave it out.

To deal with the latter point first, on a point of principle, I have no difficulty in going to the other House, taking amendments there, and coming back to Seanad Éireann with them. I did that with a previous Bill and if it improves this one, I have no difficulty doing so again. I will look at that, but I am quite strongly of the view that what Senator Quinn is trying to achieve has already been achieved.

On the point made by Senator McDowell, I do not propose to make regulations in this area. I am more than happy that the code of practice prepared by the LRC will meet the requirements. The point made by the Senator is valid but the code of practice will deal with the issue adequately.

Amendment agreed to.
Amendment No. 35 not moved.
Government amendment No.36:
In page 12, between lines 4 and 5, to insert the following:
"(6)Schedule 3 has effect in relation to an alleged contravention of subsection (1).
(7) If a penalisation of an employees' representative, in contravention ofsubsection (1), constitutes a dismissal of the representative within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the representative in respect of that penalisation both under Schedule 3 and under those Acts.”.
Amendment agreed to.

Amendments Nos. 37 to 42, inclusive, may be discussed together, by leave of the House.

I move amendment No. 37:

In page 13, lines 5 and 6, 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".

In tabling this amendment, Senator Coghlan and I are trying to avoid spurious claims that are not realistic. The amendment aims to avoid circumstances where one employee, even in a model with employee representatives, could perhaps vexatiously or maliciously refer a complaint to the Labour Court. It aims to preserve that option only for the direct model, where it is appropriate and necessary. That is the objective of amendment No. 37 and amendment No. 38 deals with the same issue. These amendments are designed to prevent a situation where one person could avoid going through the normal procedures, in a vexatious manner, and I believe it would be of benefit to the Bill if the amendments were accepted.

I second the amendment.

Members will remember that on Committee Stage we provided a role for the Labour Relations Commission in the dispute resolution process, after internal company procedures have been exhausted and before referring matters to the Labour Court. That is the most effective way to deal with such issues. I have sympathy with the point made by Senator Quinn and I have examined this matter very carefully. Initially, I thought that what he is suggesting might be the right thing to do. However, on reflection, I believe it is safer to allow an individual employee to be in a position to make a complaint. It is entirely possible that an individual employee would have a difficulty and, after all, the complaint is going through the process of an internal mechanism and then the LRC where, if it were frivolous, it would be shot down immediately.

In the interests of preserving the rights of the individual, on balance, it is better to give the right to complain to the individual in the Bill, although I understand Senator Quinn's point. In view of the process envisaged here, I do not see any danger that the right we want to give the individual would be abused in any way because I think the people dealing with the complaint would spot an abuse from a mile away.

Is the amendment being pressed?

I will not press amendment No. 37, in light of the Minister of State's views, but I would like him to take the matter into account and to ensure that he is satisfied before the Bill returns to the Dáil. It is a genuine concern and it has happened in the past where one individual decides not go through the procedures. On the other hand, I understand the Minister of State's point, that there have been occasions where one person has a legitimate case but has not been heard by the internal procedures process. However, I would be reluctant to believe that this is not a worthy consideration and perhaps the Minister of State will re-examine it between now and the time of the Bill's referral to the Dáil.

Amendment, by leave, withdrawn.
Amendment No. 38 not moved.
Government amendment No. 39:
In page 13, line 44, to delete "The" and substitute "As regards a dispute referred to it undersubsection (1) or (5), the”.
Amendment agreed to.
Amendment No. 40 not moved.
Government amendment No. 41:
In page 14, line 1, to delete "or" and substitute "or, as the case may be,".
Amendment agreed to.
Government amendment No. 42:
In page 14, line 3, to delete "or" and substitute "or, as the case may be,".
Amendment agreed to.
Government amendment No. 43:
In page 14, between lines 19 and 20, to insert the following:
"(10) The Court may refer a question of law arising in proceedings before it under this section to the High Court for determination and the decision of the High Court shall be final and conclusive.".
Amendment agreed to.
Government amendment No. 44:
In page 14, line 22, after "15" to insert "or on the hearing of an appeal underSchedule 3”.
Amendment agreed to.
Government amendment No. 45:
In page 14, line 35, after "section 15” to insert “or an appeal under Schedule 3’’.
Amendment agreed to.
Government amendment No. 46:
In page 15, line 1, after "dispute" to insert "or appeal".
Amendment agreed to.
Government amendment No. 47:
In page 15, to delete lines 3 to 12, and substitute the following:
"(1) If—
(a) a party to a Court determination fails to carry out in accordance with its terms a determination of the Court in relation to a dispute under section 6 or 15, or
(b) a party to a complaint under Schedule 3 fails to carry out in accordance with its terms a decision of a rights commissioner or a determination of the Court under that Schedule in relation to the complaint, within the period specified in the determination or decision or if no such period is so specified within 6 weeks from the date on which the determination or decision is communicated to the parties, the Circuit Court shall, on application to it in that behalf by one or more of the parties to the dispute or complaint, without hearing any evidence (other than in relation to the matters aforesaid) make an order directing the party concerned to carry out the determination or decision in accordance with its terms.”.
Amendment agreed to.
Government amendment No. 48:
In page 15, line 14, after "Court" to insert "or a decision of a rights commissioner".
Amendment agreed to.
Government amendment No. 49:
In page 15, line 14, after "determination" to insert "or decision".
Amendment agreed to.
Government amendment No. 50:
In page 15, lines 17 and 18, after "determination" to insert "or decision".
Amendment agreed to.
Government amendment No. 51:
In page 15, between lines 20 and 21, to insert the following:
"(3) In an order under this section providing for the payment of compensation of the kind referred to inparagraph 1(3)(c) of Schedule 3, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, direct the employer concerned to pay to the employee concerned interest on the compensation at the rate referred to in section 22 of the Courts Act 1981, in respect of the whole or any part of the period beginning 6 weeks after the date on which the determination of the Court or the decision of the rights commissioner is communicated to the parties and ending on the date of the order.”.
Amendment agreed to.
Government amendment No. 52:
In page 16, line 47, to delete "shall be" and substitute "is".

This amendment is technical in nature and, on the advice of the Parliamentary Counsel, aims to ensure consistency throughout the Bill.

Amendment agreed to.

Amendments Nos. 53 to 55, inclusive, are cognate and may be discussed together, by leave of the House.

Government amendment No. 53:
In page 17, line 18, to delete "section 19 or 18” and substitute “section 18 or 19”.

These amendments are all technical in nature and are required to correct the order of section numbers listed in section 20.

Amendment agreed to.
Government amendment No. 54:
In page 17, line 26, to delete "section 19 or 18” and substitute “section 18 or 19”.
Amendment agreed to.
Government amendment No. 55:
In page 17, line 32, to delete "section 19 or 18” and substitute “section 18 or 19”.
Amendment agreed to.

Amendments Nos. 56 to 58, inclusive, are related and may be discussed together, by agreement.

Government amendment No. 56:
In page 17, line 36, to delete "March" and substitute "12 March".

This arises, indirectly, from the discussion on a previous day, where Members strongly believed that we should ensure consistency between the Bill and the wording of the directive. These amendments are technical in nature and arise from that earlier discussion.

Amendment agreed to.
Government amendment No. 57:
In page 17, line 38, to delete "undertaking," and substitute "undertakings,"
Amendment agreed to.
Government amendment No. 58:
In page 19, line 24, to delete "purpose" and substitute "purposes".
Amendment agreed to.
Amendment No. 59 not moved.

Amendments Nos. 60 to 63, inclusive, are related and may be discussed together, by agreement.

I move amendment No. 60:

In page 20, lines 20 to 22, to delete all words from and including "but" in line 20 down to and including "representatives" in line 22.

This amendment is technical in nature. The elaboration in the Bill text is superfluous and unnecessary. The aim of amendment No. 62 is to preserve the management position to where they have competence and to seek protection where immutable decisions are taken elsewhere, for example, a company head office in another country. This is the concern if we do not include the wording submitted in the amendment. If the amendment is accepted, section 4(2) would state:

Consultation shall take place:

(a) while ensuring that the method, content and timeframe thereof are appropriate;

(b) at the relevant level of management and representation, depending on the subject under discussion;

(c) on the basis of information supplied by the employer and of the opinion which the employees’ representatives are entitled to formulate;

(d) in such a way as to enable the Forum to meet the employer and obtain a response, and the reasons for that response, to any opinion they might form;

(e) with a view to reaching an agreement on decisions referred to in paragraph 3(c) that are within the scope of the employer’s powers to raise within the timeframe at paragraph (a) and within the competence to respond within the rationale required at paragraph (d).

The concern is to limit the exposure that decisions might be taken outside the State. We can foresee a situation where companies based in Ireland might have decisions made elsewhere, and this must be taken into account. I would like the Minister of State to consider this aspect.

Amendment No. 63 proposes to reduce the exposure an employer has and to avoid disputes over acarte blanche assumption or presumption by employees. This is the reason for suggesting that amendment No. 63 should be accepted. It covers a situation where decisions are being made elsewhere and are not made inside the competence of local management in Ireland. This aspect is worthy of consideration.

Amendment No. 61 seeks to amend the standard rules by providing that the forum should meet at least four times a year. I can anticipate the Minister of State's response in that he will probably say there is provision for the forum to meet in any event in exceptional circumstances where the employee representatives wish to do so.

This goes to the core of the Bill in that we must ask ourselves why we are providing for the forum in the first instance. Of course, it is being provided for in exceptional circumstances where there is a crisis and when serious changes in work practices and serious levels of redundancies are being contemplated. We expect the mechanism will be used most often in these circumstances.

However, it would be a good thing to inculcate a culture of information and consultation whereby, on a regular basis, there is a forum where employee representatives and employers meet to consult about matters that concern them both and to provide information about how the company is doing and the nature of its plans. If we accept the proposition that it should be a routine matter as well as a crisis management issue, it appears reasonable that the forum should meet at least four times a year, which would not be particularly onerous on anyone, rather than twice a year, which is the current provision.

Since we are discussing the other amendments with this amendment, I have some difficulty with Deputy Quinn's amendment. It is not difficult to envisage circumstances whereby a meeting of the forum takes place and there is a discussion on future plans, and essentially the local employers, the Irish representatives of an American multinational corporations, may say after the event that they did not know what was coming down the line.

I do not know how multinational corporations work. Perhaps they do not always keep their Irish management fully briefed on their international plans. I suspect that in many instances multinational corporations shift from one country to another without first informing local management. I appreciate that this puts local employers in some difficulty because they cannot be found guilty of not transmitting information they did not have. However, if we were to accept the principle behind Senator Quinn's amendment, we would be going too far, because it would, in effect, be acknowledging that even if they did know that it was intended to move elsewhere, because it was not within their competence to do anything about it, they would not have to transmit that information. I do not think we could accept this proposal.

As regards amendment No. 60, which would seek the removal of the wording "unreasonably withhold consent to proposals made by employees or their representatives", we must look at this proposal in the spirit of the legislation. It appears to be sensible to include this provision. If we omit it, we arede facto saying that, in any circumstances of their choosing, employers could unreasonably withhold consent to proposals. That would not serve us well in this instance.

Senator McDowell correctly anticipated what I might say about amendment No. 61. We must include a provision that is not unnecessarily onerous. Twice a year appears reasonable, particularly when one takes account of the fact that there is provision for additional meetings should they be required. The wording used in section 4 of Schedule 1 is the same as that used in the directive. We have been trying to reflect as closely as possible the wording of the directive. On balance, people would find it difficult to argue with this provision.

I have examined amendment No. 62 carefully. We should remind ourselves that the intention of the information and consultation directive on the Bill is to ensure that information and consultation are provided by employers systematically and on an ongoing basis so that employees can acquire an informed understanding of the challenges faced by the business. Of course, there are situations where decisions can be made outside the country. However, I do not think we would serve the purposes of this legislation well if we were to provide for them directly as would be the case with the amendment. We need to stick to the spirit and intent of the Bill.

Senator Quinn is correct that there are circumstances where it is entirely possible that decisions could be made without reference to Irish management. Nevertheless, the directive we are trying to transpose, and the culture we are trying to encourage, requires we do so in accordance with the wording in the Bill. I would be very concerned if we were to make this kind of exception, because it would have the effect of undermining considerably what we are trying to achieve.

On amendment No. 63, there is a requirement on employers to provide financial resources to members of the forum to assist them in their duties as is reasonable. It does not appear to impose an overly onerous obligation on them. The code of practice comes into play in that regard.

Senator Quinn is correct. He is aware within his own industry that decisions are often made outside this jurisdiction and are, in fact, imposed.

Is amendment No. 60 being pressed?

Amendment, by leave, withdrawn.

I move amendment No. 61:

In page 20, line 34, to delete "twice a year" and substitute "at least four times a year".

I second the amendment.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 62:

In page 21, line 30, to delete "powers." and substitute "powers to raise within the timeframe atparagraph (a),and within the competence to respond within the rationale required at paragraph (d).”.

In light of what Senator McDowell said, it could be abused in some circumstances. However, there is a case to be made to which I referred. I would like the Minister of State to reconsider the matter. I do not have better words, but it appears there is a problem. In the past, decisions have been made outside the State. As the Minister of State and Deputy McDowell said, it could be abused. Perhaps the Minister of State will consider the matter before the Bill is debated in the Dáil.

Amendment, by leave, withdrawn.
Amendment No. 63 not moved.

I move amendment No. 64:

In page 22, 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 Bill provides that where the number of candidates on the nomination day exceeds the number of members to be elected to a forum, a poll shall be taken on the basis of any appropriate in-house arrangements. It further provides that in the absence of in-house arrangements, voting in the polls shall take place by secret ballot on a day or days to be decided by a returning officer. The whole concept of this is to widen the scope of poll methods available and to leave the system we have as a fallback. I believe the use of the words "proportional representation" in the Bill is too elaborate, so the amendment is worthy of consideration.

I second the amendment.

The wording used in the published text has been used in previous legislation, that is, in the Transnational Information and Consultation of Employees Act 1996 and it has not presented any difficulties. It would obviously be preferable that employers and employees avail of the flexibility of the legislation to negotiate and agree information and consultation arrangements. We need to remember that a fallback provision exists in Schedules 1 and 2. It seems to me that in a situation where the parties fail to reach agreements, we ought to have the fallback provision and that in that provision, it is necessary to be more prescriptive than it might be in other circumstances. That is why I want to use this wording.

I am not happy with that. The Minister of State has given attention to it, but there is a strong case to be made for my amendment. I urge the Minister of State to reconsider this because it is a point that deserves more attention than has been given.

Amendment put and declared lost.
Government amendment No. 65:
In page 22, after line 32, to insert the following:
"Schedule 3
Redress for Contravention ofSection 13(1)
Complaints to rights commissioner.
1. (1) An employees' representative (the "employee") may present a complaint to a rights commissioner that his or her employer has contravened section 13(1) in relation to the employee.
(2) Where a complaint undersubparagraph (1) is made, the rights commissioner shall-
(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,
(b) give a decision in writing in relation to it, and
(c) communicate the decision to the parties.
(3) A decision of a rights commissioner undersubparagraph (2) shall do one or more of the following:
(a) declare that the complaint was or, as the case may be, was not well founded;
(b) require the employer to take a specified course of action;
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration in respect of the employee’s employment,
and the references in the foregoing clauses to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.
(4) A rights commissioner shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
(5) Notwithstandingsubparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (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.
(6) A complaint shall be presented by giving notice of it in writing to a rights commissioner.
(7) A copy of a notice undersubparagraph (6) shall be given to the other party concerned by the rights commissioner concerned.
(8) Proceedings under this paragraph before a rights commissioner shall be conducted otherwise than in public.
Appeals from decisions of rights commissioner.
2. (1) A party concerned may appeal to the Court from a decision of a rights commissioner underparagraph 1 and, if the party does so, the Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the determination to the parties.
(2) An appeal under this paragraph shall be initiated by the party concerned giving, within 6 weeks (or such greater period as the Court may determine in the particular circumstances) from the date on which the decision to which it relates was communicated to the party, a notice in writing to the Court containing such particulars as are determined by the Court undersubparagraph (4) and stating the intention of the party concerned to appeal against the decision.
(3) A copy of a notice undersubparagraph (2) shall be given by the Court to any other party concerned as soon as practicable after the receipt of the notice by the Court.
(4) The following matters, or the procedures to be followed in relation to them, shall be determined by the Court, namely-
(a) the procedure in relation to all matters concerning the initiation and the hearing by the Court of appeals under this paragraph,
(b) the times and places of hearings of such appeals,
(c) the representation of the parties to such appeals,
(d) the publication and notification of determinations of the Court,
(e) the particulars to be contained in a notice under subparagraph (2), and
(f) any matters consequential on, or incidental to, the foregoing matters.
(5) The Court may refer a question of law arising in proceedings before it under this paragraph to the High Court for determination and the determination of the High Court shall be final and conclusive.
(6) A party to proceedings before the Court under this paragraph may appeal to the High Court from a determination of the Court on a point of law and the determination of the High Court shall be final and conclusive.
Paragraphs 1 and 2: supplemental provisions.
3. (1) A rights commissioner shall furnish the Court with a copy of each decision given by the commissioner under paragraph 1(2).
(2) A rights commissioner shall maintain a register of all decisions given by him or her underparagraph 1(2) and shall make the register available for inspection by members of the public during normal office hours.
(3) The Court shall publish, in a manner it considers appropriate, particulars of any determination made by it under subparagraph(4)(a), (b), (c), (e) and (f) of paragraph 2 (not being a determination as respects a particular appeal under that paragraph).”.
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Cathaoirleach and the Members for their co-operation and for the amount of work they put into the amendments. I was impressed by the contributions made on Second Stage and the amendments on Committee Stage. If my colleagues in the other House come up with better ideas and I am minded to accept them, I will return to this House with them.

I came into this without a great deal of experience of this kind of legislation. I am impressed by the Minister of State and by his officials and the amount of work that was put into the Bill. I found it very educational. It was good to have a Minister of State who responded to our concerns expressed on Second and Committee Stages.

I thank the Minister of State and his officials. The Bill has had a successful passage through the Seanad. I was very impressed by the way the Minister of State was prepared to listen and debate every issue in a thorough and detailed manner. I wish him success with the passage of the Bill in the other House.

I thank the Minister of State and his officials. I share the sentiments articulated by Senators Quinn and Leyden. The Minister of State listened well on Second Stage and on Committee Stage. He struck his own balance having heard all the arguments. We may not agree 100%, but we are very appreciative of what he has done.

I would like to be associated with the words of thanks offered to the Minister of State and his officials. In a sense, those of us on this side of the House made his job unusually easy in fighting ourselves to a draw and in allowing the Minister of State to say that he had considered both sides, while not actually accepting anything that either of us said. Nonetheless, that is the way of these things. It is unusual for a Bill of this kind to come into the House without the prior sanction of the social partners. It is a pity that such is the case. On the other hand, issues which may not have got a airing have been aired here. I suspect that this is not the last we will see of this Bill and that the Minister of State may be back before us in a few months time. I wish him well during the passage of the Bill through the other House.

Question put and agreed to.

When is it proposed to sit again?

At 2.30 p.m. next Wednesday.

The Seanad adjourned at 3.45 p.m. until2.30 p.m. on Wednesday, 9 November 2005.