I welcome the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Tom Kitt, and his officials Mr. Maurice Cashell, Mr. Joe McDermott and Mr. Pat Houlihan.
Industrial Relations (Amendment) Bill, 2000: Committee Stage.
Section 1 agreed to.
NEW SECTION.
Amendment No. 23 is consequential on amendment No. 1 and these amendments may be taken together.
I move amendment No. 1:
In page 3, before section 2, to insert the following new section:
"2.-(1) An employer shall recognise and negotiate with a trade union or excepted body where such trade union or excepted body notifies the employer in writing that it represents a part or all of the workforce who are its members.
(2) An employer who fails to comply with this section shall be guilty of an offence and shall be subject to a fine not exceeding £30,000.".
This amendment seeks to ensure that the Bill achieves what should have been its original objectives, namely, to compel recalcitrant employers to recognise and negotiate with their workers organised in trade unions.
This Bill arose from a number of industrial situations, particularly the baggage handlers dispute in Ryanair. There was a widespread feeling among workers and the ranks of the organised labour movement that it was unacceptable that employers could use the jackboot to walk roughshod over the civil rights of workers to trade union membership and that such employers should be obliged to recognise and negotiate with trade unions. Somewhere between the genesis and conception of the Bill and the draft as produced, an enormous transformation took place to the extent that the Bill is a waste of time.
The Bill aspires to promoting harmonious relations and is entitled an Act to make further and better provision for promoting harmonious relations between workers and employers. However, as we go through the Bill we will see that it is useless from the point of view of workers dealing with difficult employers.
If employers were infused with the spirit of peace and love the Bill might be fine. The aspiration to harmonious relations is fine. However, when faced with recalcitrant employers, workers need legislation with teeth which will compel employers to negotiate with them in a meaningful way and to recognise the organisation trade union or excepted body which they wish to engage in negotiations on their behalf. That is why the Bill should require employers to recognise and negotiate with trade unions and excepted bodies and why my amendment stipulates that, "An employer shall recognise and negotiate with a trade union or excepted body where such trade union or excepted body notifies the employer in writing that it represents a part or all of the workforce who are its members", and that employers should be penalised for refusing to do so.
The Taoiseach, when speaking to the Cork Chamber of Commerce on 13 February 1998, which was during the Ryanair dispute, was concerned about the issues raised. He stated that the prolonged baggage handlers dispute at Ryanair was a matter of great disquiet and called the efficacy of social partnership arrangements into question. He also stated that he did not believe that tooth and claw style capitalism was the direction in which most people wished the Celtic tiger to go. These are terms which we do not normally hear the Taoiseach using. He further stated that, in terms of the Ryanair dispute, there was a need for an impetus on both sides to engage in real dialogue with third party help offered by the State, if required.
The problem arises when an employer does not wish to enter dialogue but wishes to use the jackboot and refuses to talk to a trade union nominated by workers. What are workers to do in such situations? This Bill is a charter for difficult employers to carry on in the manner to which they are accustomed. If enacted, the Bill will result in some hapless trade union official pushing paper around the Circuit and High Courts, possibly two years after a dispute erupted. The nub of my proposal, which I urge the Minister to accept, is that this should become a trade union recognition Bill in accordance with workers' wishes.
I am anxious that we cut to the chase in regard to the amendments before us. Although I have been lenient with Deputy Higgins and allowed him to cite quotes from the Taoiseach, I urge members to focus their energies and efforts on the amendments. That would better serve the interests of those who will be affected by the legislation.
I recall vividly the views expressed by the Taoiseach at the time of the aforementioned dispute, but I agree that it is time to move on. Legislation was enacted as a result of what occurred during that dispute. I do not accept Deputy Higgins's comments about the Bill's lack of value in regard to our corpus of industrial relations law. The Bill covers special fall-back procedures agreed between the ICTU and IBEC. Some may not agree with the consensus which has been reached, but successive Governments have honoured the agreed arrangements. This legislation follows a code of practice enacted by means of statutory instrument and the combined effect of that code and this Bill will allow claims to be processed, even if an employer has refused to engage with a trade union at any point.
Following the Ryanair dispute, I asked a group comprising representatives of the social partners to address what was then a difficult situation. I am loath to call it a high level group as many seem to have a difficulty with that description. The proposed wording in the amendment is unconstitutional and not in keeping with the approach adopted by the social partners. Successive Governments have sought to underpin the voluntarist approach in such a way as to allow the social partners to reach as high a degree of agreement as possible in direct discussion. As Minister of State with responsibility for labour affairs, I continue to adopt that approach. In the aftermath of the Ryanair dispute, I asked the social partners to redouble their efforts to reach consensus in disputes in which collective bargaining was absent and it is a tribute to them that they succeeded in agreeing an approach in the form of an outline code of practice on voluntary dispute resolution and the Bill before us.
The proposed amendment would contravene Article 40 of the Constitution which protects both the freedom to associate and not to associate.In the Abbott and Whelan case, Mr. JusticeMcWilliam upheld the right of an employer not to engage in negotiations. The recent High Court and Supreme Court judgments in the Irish Rail versus ILDA case reaffirmed that an employer can choose whether to negotiate with a trade union. Equally, an employee's right to join a trade union is not in doubt. The Bill will allow trade unions to process a grievance or claim on behalf of employees to finality, but does not require employers to negotiate with trade unions. The Bill is founded on consensus, although I appreciate that some are not happy with this. I am prepared to make changes to the legislation on foot of some of the amendments tabled and suggestions made. I must adhere, however, to the basic principle of partnership.
For the reasons outlined, the long title proposed by Deputy Higgins would also be unconstitutional in that it would contravene Article 46.1 of the Constitution and not reflect the Bill's content or the intent of employers and trade unions who were instrumental in framing that content. I reject the amendment.
I am convinced that the framing of Deputy Higgins's amendment is unconstitutional. I was involved in the Abbott and Whelan case to which the Minister of State referred. The amendment, however, provides an opportunity to examine the essence and merits of the Bill. From here onwards, we will be dealing primarily with the detail of the Bill. I am of the view that it would be better if this legislation was never enacted because it does not serve any purpose. I agree with the Minister of State's statement that voluntarism is the cornerstone of our industrial relations system and that any intervention should underpin this. The Minister of State should only intervene, however, where such intervention has a purpose, ostensibly trade union recognition in this instance. Whatever this Bill is about, it is not about trade union recognition. It is not about giving a trade union the right to represent workers.
The key issue in trade union recognition is representation. One cannot get recognition without representation for which the Bill fails to provide. The 1998 Trade Union Recognition Bill, published by the Labour Party, has become the Industrial Relations (Amendment) Bill. It is not possible for Deputy Higgins to amend the Bill's title because it no longer concerns trade union recognition.
If there is no point to this legislation, from the point of view of the trade union movement, wherein lies its merit? If I were in Cambridge, Massachusetts negotiating on behalf of the Scottish Development Authority in regard to the location of an enterprise for which I was in competition with the IDA, I would reach into my briefcase and take out this legislation. I would inform the American boss that if he were to go to Ireland rather than Scotland, the State could intervene to fix his workers wages and conditions. Ultimately, that is what the legislation does.
I accept that the Minister of State is caught up in social partnership, towards which we must all genuflect, and I am aware that the situation he outlined resulted from proposals from the high level group. If ever a committee made a camel, however, this is it. This legislation has its genesis in the Ryanair dispute which was an embarrassment for the trade union movement, businesses and social partnership. The majority of employers acknowledge our industrial relations structures and recognise trade unions. The Ryanair dispute necessitated sending out a "Mr. Fixer" and this is what we came up with. We should really cancel the legislation. Nothing will suffer as a result. We should let the voluntarist nature of the industrial relations system work. If we do not provide for the right to representation, the notion that the State can intervene to fix the wages and conditions of workers who are not even members of a trade union is potentially dangerous.
I was around during the Ryanair dispute and I am aware of the trauma it caused. Even if the legislation did nothing more than resolve another Ryanair-type dispute, it would have made a valuable contribution. Effectively, I am intervening to allow workers to have their claims processed, even if the employer is implacably opposed to dealing with the claim presented by a trade union. There is a very carefully laid out path through which the parties can go. First, they can adopt a voluntary approach and, second, if there is an involuntary situation, there is a fallback position. The Deputy will recall the chaos caused by the Ryanair dispute, and the legislation will prevent a repetition of that. That is my bottom line position. I am not suggesting this is the be all or end all legislation, but if we as legislators are presented with those types of intractable situations, we are duty bound to deal with them. We are fortunate to have a support system of social partnership. The same system would have been available to the Deputy when Minister of State and he would have availed of its support when necessary in the interests of the economy. This is helpful legislation and to suggest that we close up shop at this stage is rather disingenuous.
This is an important matter. Will the Minister of State explain how the legislation will prevent another such Ryanair dispute happening?
The fallback position provides that the Labour Court is empowered to summon parties to attend before it, which is very definitive and, ultimately, the matter can be brought before the Circuit Court. There is a filtering system through which parties can go.
Will the Minister of State take us through the procedure? Suppose the baggage handlers' dispute were to happen tomorrow morning, how soon under the legislation could they have, not their grievances because they cannot get trade union recognition, their wages and conditions met? Wages and conditions are not the only reason workers might wish to join a trade union. There can be a whole variety of reasons workers might wish to do so. Will the Minister of State put on the record for the purposes of the progress of the Bill how long he believes an employer with Mr. O'Leary's orientation, after taking out advertisements and so on, would take to deal with such an issue? Whatever I may think about the Minister for Public Enterprise, it is outrageous for an employer to engage in the kind of public tomfoolery in which he engages. How soon can baggage handlers have their grievances dealt with?
We are getting into a broader discussion on this dispute resolution mechanism. There is a very clear-cut process through which one must go, including determination, review of procedures and finally an enforcement order. The important aspect of this industrial relations apparatus is that the parties have a place to go. I met the baggage handlers during the Ryanair dispute and to that extent I am close to the mood of those individual workers and I am very anxious to give these people a place to go. There is a dynamic here in the sense that the parties can become engaged from the outset. As the Deputy will be aware from his briefing material, there is a process through which one will go. A specific problem at that time was that the Labour Court summoned Mr. O'Leary and he refused to go before it. That was one of the central features of the dispute. Regardless of timescale, the process offers finality, which is crucial. I would be happy to discuss the timescale.
What does the Minister of State think the approximate timescale would be?
The Labour Court will have crucial involvement in this regard. There have been consultations and I will be pleased to share some of the advice received from the Labour Court in relation to timescales. I have been informed that the Labour Court will deal with these issues as expeditiously as possible. When I raised queries in preparation for this committee, I was reminded that in many instances the delays may result from the fact that, as the Deputy will be aware from his industrial relations experience, parties may not be available - the parties may be responsible for the delays. Therefore, it would be wrong for me to specify a timescale. Important amendments have been tabled which I will be happy to deal with, and I will accept amendments that will speed up the process.
Notwithstanding anything we might agree on - I hope we will agree some changes later - as the Bill stands, what is the best advice available to the Minister of State in terms of the period from the day the dispute happens until the order is made stick, given that a guy like Mr. O'Leary will end up in the Circuit Court?
We are in the estimation business here. It could be up to a year.
It could not be less.
I am trying to give the Deputy the outer limits. We will deal with the issue of timescale later. I want to deal with the question of retrospection because useful suggestions were made on Second Stage on this area. That is my guesstimate of what might happen.
With respect, Minister, we must read this on the record.
That is what the Deputy is trying to do.
The Minister of State and I know it cannot be less than a year. I want to ask again what is the timescale envisaged in relation to this, because very often time is of the essence in this type of dispute? All one need do is look at Dublin Airport today. Time is of the essence and I am trying to elicit from the Minister of State, as the author of the legislation, what the timescale will be. He said he met the Ryanair baggage workers, but I also met them. If they said to me, "Thank God for that nice man, Minister Kitt, he understands us and he told us he understood us and so on; he has now introduced the Act so how long will it take us to get our business settled", what would the answer be?
As someone who has been a central player in many lengthy negotiations, and some which were not so lengthy, I do not think the Minister of the day can say precisely how long the process will take. The crucial point is that we are giving the process finality in the legislation. That is in line with other industrial relations legislation. The parties can decide the length of the process at any stage. The Minister of the day could not answer definitively that question. However, I am conscious of the need to speed up the process and I am thankful for the representations and amendments tabled.
Deputy Rabbitte made a valid point on the timescale in question, which may lead to further problems and frustration if the issues involved are not resolved as quickly as possible. It is important, therefore, that mechanisms are in place to ensure they are dealt with as swiftly as possible and not dragged out over a long period. From the employees' point of view, this may result in an industrial dispute for between 12 and 18 months, as the case may be. Neither would it suit the employer to have an industrial dispute within the company. This will never apply, however, to the vast majority of employers who have negotiating mechanisms in place with their employees.
Deputy Rabbitte mentioned the baggage handlers dispute in Ryanair. How does the Minister of State see the dispute with the ILDA, in which the problems are similar, being dealt with under the legislation? While Deputies Rabbitte and Higgins made valid points on trade union recognition, the counter-argument is that trade unions are in dispute regarding their negotiating positions on industrial relations problems. This creates difficulties for employers in terms of with whom they should be negotiating, how they should be negotiating and the conclusions to which they should come.
The more the Minister of State speaks, the more he exposes this proposal as a sham. He will not compel an employer to recognise and negotiate with a trade union.
Let us take as an example an anti-union employer at Dublin Airport who hears that a group of his workers has joined a trade union and changes their working conditions to the point where they are intolerable. The Minister of State will not compel him to negotiate with their union. Under this proposal the Labour Court will take the matter on board and after an unspecified period - we do not know if this will happen within a matter of weeks - make a determination favourable to the workers. A full 12 months will have to elaspe before its determination may be referred to the Circuit Court for enforcement. What will happen to workers whose working conditions are intolerable in the intervening period when they will be subject to victimisation? How long will the matter remain on the lists of the Circuit Court? It could remain on the lists for anything up to six months. If the Circuit Court upholds the determination of the Labour Court, the matter may be appealed to the High Court where it could remain on the lists - we all know what they are like - for six months. It could be a full two years, therefore, from the initial complaint and, more importantly, severe deterioration in working conditions of the anonymous group of workers to whom I refer before a final determination is made. Most, if not all, of the baggage handlers involved in the dispute with Ryanair, about whom the Minister of State professes to care so much, have been driven out of the company. Under this proposal an employer will have two years to make sure workers are driven out. This is an absolute joke. Will the Minister of State answer the specific question that he would not answer directly for DeputyRabbitte? Is it not the case that a full two years may elapse before a final decision is made by the court of final appeal?
A number of issues have been raised. A dispute similar to that with the ILDA, which was not an accepted body, will not be processed under the Bill. Deputy Higgins repeated the arguments he made earlier when I argued in response that constitutional and case law limits how far we can go in legislation in dealing with the question of recognition. I am abiding by the Constitution.
On the timescale issue, I am proposing to provide for a period of six months, rather than one year, in section 9 by way of amendment and refer to retrospection in section 7. I have also tabled an amendment to section 10 limiting the timescale of the enforcement procedure. I am conscious, therefore, of the comments which have been made. We have looked at the issue on the basis of the submissions made on Second Stage and the comments made, by Senator Costello in particular, in the Seanad.
While I take the Minister of State's point that the ILDA was not a recognised body, if there is a similar dispute in a company where a recognised trade union is not prepared to take the same line as the majority of workers who are agreeable to proceeding with whatever agreement has been made, how will it be dealt with under the Bill?
If it involves a trade union or an accepted body, it will have access to this legislation. The Bill does not deal, however, with collective bargaining, which will continue to be subject to the voluntary process.
This is the section of the Bill that matters. As Deputy Higgins remarked, the more the Minister of State addresses it, the more it bears out our concern that, on balance, the force of the Bill will be negative. The position may not always be as propitious in terms of direct foreign investment and in a more competitive environment, this will be a negative and a downside. On the upside, other than being a fig leaf, it will not help the position on industrial relations.
Deputy Naughten mentioned the ILDA. The Minister of State rightly said in response that the Bill will not apply to a similar dispute, but such a dispute can arise from time to time. The thrust and purpose of the Bill is to maintain industrial peace. While this is a desirable objective, it is not the objective of trade union recognition. While I accept it is a benign aspiration, the Bill will not achieve it because of the timescale involved. If I read the Bill correctly, as it stands, the Circuit Court may assess the merits of a case de novo. In a contentious industrial dispute, a situation cannot stand still merely because there is a facility to invite the parties to the dispute to the Labour Court to have their say and let off steam. Being realistic, that will not contain the situation for 18 months at a minimum and, possibly, more than two years. I do not see much point in it. I do not blame the Minister because this was born out of circumstances outside the control of this committee, and once people start to go down that road to get agreement, they come up with this - the employer, it is hoped, will get a bit of industrial peace out of it and the employee will not get recognition but will get wages fixed by the back door. It runs counter to the normal industrial situation because what will happen is that the trade union concerned, if it is strong enough or has sufficient members, will assert itself in the traditional way. That did not happen in Ryanair because there was not a sufficient number of them.
Funnily, what happened subsequently when the pilots joined IMPACT was that Mr. O'Leary, without his tie, sat down with the pilots and pretended he was meeting the pilots as pilots and not IMPACT, and the pilots had enough clout and enough wit not to get hung up on that. They just got on with the business. That is what happens in the normal run. This will happen only where there is a minority of workers and the trade union cannot assert itself. The Minister's view is that if they wait long enough and go through these various hoops they will come out at the other end. It is not worth taking up our time about it, and it is not a good idea to put this on the Statute Book.
Is the amendment being pressed?
Amendment put and declared lost.
SECTION 2.
There was reference to individuals who are not Members of the House. I remind members that we should not refer to people in that fashion.
We come to amendment No. 2 in the name of the Minister. Amendment No. 9 is consequential. It is proposed, therefore, to take amendments Nos. 2 and 9 together, by agreement.
I move amendment No. 2:
In page 3, subsection (1), line 30, to delete "an authorised" and substitute "a".
This is a technical amendment to ensure consistency in the definition of a trade union in section 8 of the Industrial Relations Act, 1990, which provides that "trade union" means a trade union which is the holder of the negotiating licence under Part 2 of the Trade Union Act, 1941. The term "authorised trade union" is not defined in legislation.
Amendment agreed to.
I move amendment No. 3:
In page 4, subsection (1)(c), line 10, to delete "or the employees".
Section 2 is pivotal in terms of the conditions that must exist to satisfy the court. One such condition is contained in paragraph (c) which states that the trade union or accepted body, or the employees, as the case may be, have not acted in a manner in which, in the opinion of the court, has frustrated the employer in observing a provision of such code of practice. The Minister is going for belt and braces here. It is a little like "authorised" - even though there is no such definition in trade union law, it is the instinct of the system to ensure it is circumscribed and inserted. We have now excised that, and in this case we should excise "or the employees". Otherwise the union, which may behave impeccably, may not proceed if any of the employees decide to act on their own bat in terms of their grievance. The union may impose some discipline and usually gets the situation under control, but it is ruled out under this section if the employees, or an employee, decides to take action. Any number of incidents could happen in the workplace which could provoke workers to take action.
I argue for the excision of the words "or the employees". We have already provided a straitjacket for the union, where the union must behave properly, but if the employer is of the opinion that an employee or employees are frustrating him, the Bill cannot be invoked.
I accept it is a belt and braces approach. I cannot accept the amendment because the effect of it would be to require a trade union not to frustrate the employer in observing a provision of the code of practice in voluntary dispute resolution but to allow members of that union, namely, the employees of the particular enterprise, to do so. This legislation envisages that both sides should have an opportunity to resolve their differences through the code of practice on voluntary dispute resolution before the Labour Court becomes involved. Then the court must satisfy itself that the trade union, the employers and the employees have tried to avail of this option before it hears the case. I am trying to make the case watertight, and that is why I am opposing this amendment.
That is very dispiriting, assuming, as I do, that the Minister knows what he is talking about. There is a requirement that the union must behave properly, if we must use that paternalistic language. However, if the employer is of the opinion that the employees have not acted in a manner which has frustrated him and the court takes the view that that is so, this Bill may not be invoked. It does not say that from the point of union intervention the employees must not play "bolshie". It says they must "have not acted". That could conceivably happen before the trade union intrudes; it could be last week's situation. It does not say that if the employees behave in an undisciplined fashion once the trade union has come in the court may take the view that it is not seized of the matter. As the section is expressed, if there is a dispute, it is open to the court to form the view that the employees have behaved in this manner and, no matter what discipline the union has brought to the situation or what advice the union is giving the people concerned, it is enough to bring them outside the terms of this section.
I support Deputy Rabbitte's amendment. The Minister is giving the employer all the outs and many planks on which to frustrate the stated intent of the legislation. Let us never forget that this legislation is not for a situation where there is recognition of unions and a normal dialogue between employers and trade unions. This is to deal with the cowboys in the employer section of the community, the people who set out to have a regime where they will not deal respectfully with employees and negotiate and arrive at agreements with them. If it is to deal with that kind of situation, it should be framed in such a way that it does not give more power to the employer than he already has.
It is clear from this and paragraph (d) that the employer could, for example, manufacture a provocation which might be responded to by one, two or three employees and, on that basis, he could hold that the issue cannot go to the Labour Court. If the employer wanted it badly enough, he or she could go to the courts to get an injunction preventing the Labour Court from hearing the case by alleging that the employees had transgressed under section 2(c). In other words, it gives a huge escape to a recalcitrant employer.
Deputy Rabbitte made an important point which should be taken into consideration. Take, for example, an instance where the union has behaved impeccably but there are one or two hotheads in the company. Paragraph (c) could be invoked because of that. These cases arise throughout the country in various walks of life. If the employer is not prepared to negotiate and is taking every avenue to avoid negotiating, frustration will naturally build up within the place of employment. One could end up with one or two people spoiling the position for everyone. This paragraph could be used by an employer as a cop-out.
The employers we are discussing in this context are a small minority but they will take every avenue to avoid negotiating with employees. The Minister should give the amendment due consideration and accept it.
I thank the Deputies for their contributions. We are not talking about industrial action in this context but about where there is a requirement on people to use the voluntary code. Paragraph (b) requires the employer to use the voluntary code and paragraph (c) imposes a similar obligation on the employee. In that sense it is a balanced approach and the court will apply common sense to the case.
There is a difficulty in distinguishing between the trade union and employees when it comes to frustrating the voluntary code. With regard to industrial action, the Bill gives the court discretion under section 8. That will be relevant to our discussions. Senator Costello referred to this too. Where industrial action takes place, my amendment permits discretion. It deals with the valid point made in that regard in the Seanad and by Members of the Dáil. I want this issue to be clear and certain.
If I was sufficiently motivated by the Bill, I would continue to argue the case because it has not been replied to. Section 2 sets down circumstances where the court may investigate a trade dispute provided the court is satisfied about a number of things. These are outlined and I am drawing attention to the fact that the court must be satisfied that the employees have not acted in a fashion that would frustrate a provision of the code. The Minister might live to rue this in the unlikely event that it will ever be invoked again in our lifetimes. If it is, the court chairman might conclude: "I am sorry Minister. I know you are on the back channel to me to investigate this dispute but I cannot do it because the employees, on day one, went outside the door or did such and such and only came back into line when the trade union came on the scene, so I cannot hear it."
The Minister claims to have given the court discretion——
We are not talking about industrial action, per se.
That makes it even wider. It is no bother to the type of employer Deputy Naughten mentioned to submit that some or all the workers sought to frustrate a particular provision of the code. A Michael O'Leary type employer will not want to go through these hoops anyway. It would be anathema——
The Deputy must not have heard my comments on the last occasion. I am trying to help you.
I apologise. That fine, innovative employer at Dublin Airport who does not accept the industrial relations practices of the State would be the first to say there has been frustration of the employer in attempting to apply some provision of the code. That would be sufficient to put it outside the remit of the court.
The court, having observed it in action, will apply common sense to the case in question.
Amendment put and declared lost.
I move amendment No. 4:
In page 4, subsection (1), lines 14 to 18, to delete paragraph (d).
That paragraph ought to be excised because it provides a blanket ban on taking any form of industrial action during the negotiating process. That is extreme. The paragraph should be excised or moderated as it is likely to be counter-productive. Again, there is double jeopardy as it provides that "neither the trade union nor the employees, as the case may be, have had recourse to industrial action after the dispute in question was referred to the Commission in accordance with the provisions of such code of practice". At least there is the saving grace in this paragraph that it applies after the dispute has been referred to the Labour Court. However, it is a blanket ban. If we are serious about this Bill being a helpful part of the disputes resolution machinery, there would be no such blanket ban and the Minister would modify it. He ought to modify it.
This is in line with the general tenor of the Bill. Again, the employer is given the major cards to play and the employee is not given any. There could be a case where a dispute, even after being referred to the court, could be deepened by the employer taking provocative or further action against the employees or by affecting their rights or conditions. The workers, knowing they can take two full years to have their dispute resolved, may have no option but to resort to lightening industrial action to protect themselves and stop themselves being walked on. The employer could use this as an out and this legislation, although defective, would not apply. No such provision is made to stay the hand of the employer in the dispute. This is all one way traffic. If the Minister wants to include this, he should also include a provision to stay the hand of the employer until a determination is made by the Labour Court. It is unacceptable that the escape clauses are included for the employer but not for the employee.
I cannot support the amendment because the effect of paragraph (d) of section 2(1) is to set as a precondition to an investigation by the Labour Court the requirement that there should not be any recourse to industrial action. The ban on industrial action is a cornerstone of this legislation in deciding on the package of measures contained in the code of practice on voluntary dispute resolution and the provisions in this legislation. The social partners group agreed that the maintenance of industrial peace was essential to the process. Where parties have embarked on a procedure to resolve a dispute, it would be standard practice for both sides to refrain from any form of coercion in advance of the procedure being completed. The compromise reached between the ICTU and IBEC places obligations on both workers and employers. It is essential during the voluntary stage that both parties follow procedures in good faith and refrain from any action that would jeopardise the process. However, I am disposed towards giving the court some discretion to proceed with an investigation where industrial action occurs during the process. I will propose an amendment to section 8 which will give the court discretion to proceed with an investigation where it has been satisfied by a trade union or an accepted body that it would be reasonable to do so having regard to all the circumstances of the dispute.
Amendment put and declared lost.
I move amendment No. 5:
In page 4, subsection (2), line 21, after "concerned" to insert "including labour relations practices engaged in by the employer or an associated employer in another employment including an employment outside the State".
This subsection requires the court to have regard to the "entirety of labour relations practices in the employment concerned". Although it is not defined, it seems the employment concerned probably means the location of the dispute or the ethos of the enterprise concerned. It is important to be clear and I seek to add the words, "including labour relations practices engaged in by the employer or an associated employer in another employment, including an employment outside the State". In other words, the court is asked to have regard to the labour relations scene in the particular employment. It is not unheard of for a company, for example, to refuse to recognise a trade union in one location, although it has already done so in another location. This is particularly the case for international companies here. The company here may take up this position but it may have taken up a different position in another jurisdiction. We had such a dispute recently. Senator Costello referred to it in the case of Aldi which, in Germany, recognises the trade unions but does not do so here.
Deputy Joe Higgins pointed out that the balance always tilts in favour of the employer. We are not talking about employer and trade union in the normal sense of that language in Ireland but about recalcitrant employers by definition. Yet the Minister of State has skewed it in the direction of those recalcitrant employers. In so far as this subsection applies, the court should be free to examine the practices observed by the employer elsewhere. One cannot have an Aldi style employer coming before the court and saying it will not recognise the union in Parnell Street for a variety of reasons and then find it is doing so in Galway or Germany. Given that there are many international companies here, it should be open to the court to look at the totality of the position. I accept it may be less likely that international companies are organised in the United States and not here. The court should be free to examine the totality of the situation and not just the particular location where the dispute has arisen.
I argue that it has the freedom to look at the totality. I oppose the amendment because it would create an artificial link between Irish labour relations practices and those in other jurisdictions. In submitting claims on pay or holidays, for example, a trade union would normally cite comparator firms in Ireland, Irish sectoral norms or Irish national pay agreements, including the current Programme for Prosperity and Fairness. In dealing with claims, both the LRC and the Labour Court will have regard to best practice in an Irish context but both sides are free to point to developments elsewhere. It is a matter for the Labour Court to judge the merits of such argument. The language used is that the court "shall have regard". I accept that Senator Costello raised this issue before. However, having reviewed the matter, I am confirmed in the view that our industrial relations legislation and practices should be the dominant consideration for disputes arising in Ireland.
I support the amendment because it would not be an artificial link between labour relations practices here and elsewhere where there is a multinational employer. The example Deputy Rabbitte gave about Aldi is a perfect case in point. We were told at the time of the dispute that it negotiates and recognises trade unions in its home base but it treats workers here despicably. It would be logical to remind such an employer that its parent group has a different approach to industrial relations from that of its Irish offshoot. That should be categorically stated in the legislation.
As a result of that Seanad debate I was pleased to intervene in the Aldi dispute and following discussions with my officials it was amicably resolved. The phrase "shall have regard to the entirety of labour relations" is a broad one. As I said earlier, it is mandatory and is designed to enable the court to have the broadest possible latitude in looking at a dispute. It should be borne in mind that it could be to the advantage or disadvantage of either party to examine labour relations practices outside the State. Nothing in the phrase restricts the court from hearing evidence from either party as to what goes on elsewhere in the company or in other employment.
Mention has been made of the fact that some companies might recognise unions in other countries but not here. However, the reverse might also be true to the extent that the Labour Court's recommendation or determination will not deal with arrangements for collective bargaining. I do not feel I should add the dimension proposed by Deputy Rabbitte in a legal text which mandates the Labour Court as to what it shall or shall not consider. I am making those comments based on an examination of the situation and I think they will stand up. The advantage will lie, effectively, in the voluntary system we have rather than in a more proscriptive approach. It affords the Labour Court wide discretion in considering submissions, not just from one but from both parties. The approach I am suggesting is the best one.
I hope the Minister's definition of "amicable" as he applied it to the Aldi dispute is different from the definition he might apply to the word with regard to his personal relations. The way the dispute finished up was anything but amicable in the normal sense of the term.
I thought you were going to congratulate the Minister on his intervention.
Aldi persecuted six workers out of the store and out of their employment, so I would not congratulate him for that.
I do not think the Deputy will congratulate me on anything.
No, I do not think you should expect it.
It is a very serious point. One can hardly regard it as a victory for intervention or industrial relations if workers end up losing their jobs as a result of a manifestly anachronistic attitude by an employer. The Minister seems to be saying two things. First, he says that "shall have regard to" here means it is mandatory. All it requires is for the trade union and the employer concerned to make submissions in terms of what the practice is internationally. Or, where the trade unions in a company have their own international links, the employer presumably knows what the practices are in the other locations. Second, the Minister is worried about creating an artificial link. That should be noted, because I have spent the past three and a half years submerged in globalism by the Minister and his Department. One has no idea of the benefits it is conferring on us all. Now the Minister is worried about an artificial link being created to the outside world. I think it is fantastic.
I accept the Deputy is entitled, rightly, to refer to the particular language I used. At the same time, however, the Deputy will appreciate that now, and during his time as Minister, there are issues we deal with which have a national significance and a European dimension. One that comes to mind concerns information and consultation in the workplace. We have always argued that there are things we do well here in Ireland. This is a case in point where we have a good system. In relation to the debate on information and consultation in the workplace, I have always tried to bring our good practices to Europe. If we do things well and there is a good voluntarist approach, which is the case here, we should use it.
All right, I surrender. Before I put up the white flag, however, will the Minister tell me what subsection (2) means?
In the course of investigation under subsection (1) the courts have regard to the entirety of labour relations practices in the climate concerned.
What is the point or the motivation, and what does it add to the situation?
They would conduct an investigation into the matters in dispute. They would take into account the integrity and totality of the labour relations practices operating in the company, and should issue a recommendation. We can question it, but we should have confidence in the way the Labour Court conducts its affairs.
What is the point of the subsection saying that the court must have regard to the entirety of labour relations practices in the employment concerned? Why are we asking the court to have that regard?
It is literally taken from the agreement of the two parties, the social partners.
The Minister is only bearing out now where we came in. I am asking him the question as the author of the legislation. I do not know about the Minister's view, but I am reluctant to hand over the running of the country to the social partners. I greatly value the input they have to make but the Minister and I were elected by the people and, for the moment anyway, he is in charge of authoring the legislation. What does it mean?
It recognises that every employment has its unique culture which should not be ignored. Essentially, that is what it says.
I agree that is exactly what it says, but the Minister is missing my point. It asks the court to have regard to the unique culture applying in that employment, but why? Suppose it found the culture was very negative, or benign, to staff relations, what would that mean for the court? What would the court do as a result of finding that?
I can presume that it would make recommendations with regard to best practice. Nothing would be out of order with regard to the court making such recommendations if it found that a particular culture was wanting in any shape or form.
So the Minister is saying that if the court found that there was a very hostile and bad attitude in the employment concerned, it would condition its recommendation?
Yes, I think it would. It is very much to be welcomed that it could go beyond the terms and conditions of employment. In the times in which we live - I am looking at the wider working environment - I would certainly support that. In the Programme for Prosperity and Fairness there is a concentration on the working environment. Issues are emerging, which we should have dealt with in the past, but with which we are dealing now, which could fall into that category when we talk about the wider culture of the workplace.
Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
NEW SECTION.
I move amendment No. 6:
In page 4, before section 3, to insert the following new section:
"3.-The dismissal of an employee for availing of the provisions of section 2 or otherwise in connection with seeking or intending to seek redress under this Act shall be deemed to be an unfair dismissal for the purposes of section 6(2)(a) of the Unfair Dismissals Act, 1977.".
This amendment would insert a new section before section 3 of the existing Bill. It seeks to enshrine in the Bill a section concerning the dismissal of persons who decide to invoke the section with which we have just dealt, section 2, so that if the employee concerned wants to invoke his or her rights under that section, "The dismissal of an employee for availing of the provisions of section 2 or otherwise in connection with seeking or intending to seek redress under this Act shall be deemed to be an unfair dismissal for the purposes of section 6(2)(a) of the Unfair Dismissals Act, 1977." I feel very strong about this one because we have talked about the Minister leaning one direction or other, but there is no protection here for victimisation and we are in victimisation territory. Let there be no doubt about it. It almost follows automatically that victimisation happens in circumstances like this.
Where an employee decides to play it by the rules, to do all the things the Minister requires of him and is within a strait-jacket regarding paragraphs (a) to (d) and so on, and where that employee is dismissed, for the purposes of this Bill, this section should be enshrined to give him protection, otherwise it would be disgraceful. I ask the Minister to take that on board.
I would like to outline the position in opposing the amendment. The Unfair Dismissals Act provides protection which, while not going as far as Deputy Rabbitte's amendment, is considerable. The legislation provides that a dismissal is deemed to be unfair if it results wholly or mainly from the employee's membership or proposal that he or another person become a member of a trade union or accepted body or the employee is engaging in activities on behalf of a trade union or accepted body where the times in which he engages in those activities are outside his hours of work or during his hours of work if he is permitted to do so by the employer. This existing protection is adequate to deal with any circumstances the Deputy may envisage of employees being victimised for exercising, or proposing to exercise, any entitlement under the Bill. The Unfair Dismissals Act links trade union activity during hours of work to the employer's permission to do so. The net effect of the amendment would be to render a dismissal unfair if it resulted from activities on behalf of a trade union during hours of work in circumstances in which the permission of the employer had been refused or, indeed, not been sought. I accept the concerns of the Deputy, but those would be the consequences of his amendment. The safeguards are there under existing legislation and I am satisfied that the coverage of the Unfair Dismissals Act is adequate.
Deputy Rabbitte, are you satisfied?
No, I am not. The kinds of circumstances in which the Minister envisages a dismissal are ugly. We are talking about an employee who has done everything by the book and there are a lot of hurdles to jump to be able to get the protection of a Labour Court investigation. If one is dismissed for invoking section 2, it seems this is the least stricture that should be on the other side. This is very important if the legislation is to have teeth or meaning for a worker who finds himself or herself in this position.
I am puzzled as to the Minister's response to Deputy Rabbitte's amendment because he confined himself to some protection or redress in regard to workers for trade union activity. This Bill does not require an employee to be a member of a trade union or to be involved in trade union activity. In considering the type of employer with which the proposed legislation is supposed to deal, the more safeguards and protections that are built into what is a very weak Bill, the better. Therefore, I support Deputy Rabbitte's amendment.
I have made the case that existing legislation deals with these circumstances. All I can say to Deputy Rabbitte and Deputy Higgins is that there will be a review of industrial relations legislation in the next 12 months, so I will ask that this matter be included in the review. That is as far as I can go at the moment.
I complimented the Minister before on his skills in getting from today to tomorrow - he is exceptional in that regard. However, if one is stuck in the position where one is sacked as a result of invoking the legislation, there is little use in saying that if the Minister is around in 12 months' time, he will include it in a review. I will have to press the amendment. I am a bit surprised the Minister, who would not have a hard ideological position on this, is not taking it on board. What possible argument can there be against providing for somebody who plays it by the book, observes the legislation, which is very "strait-jacketed", and gets the sack? I do not understand the reason.
There is legislation there and I have outlined cases where this amendment could go outside the normal worker-employer relations. There is a case for respecting the legislation which exists at present.
I agree with Deputy Rabbitte. I do not think this damages the current legislation, the Unfair Dismissals Act, 1977. It actually helps to strengthen this legislation and does not take from it. It is a further safeguard which is being written into this Bill and it specifically deals with section 2. The employers will argue that they are being put in a strait-jacket and so will the employees, but the nub of the issue is that this legislation will only come into force when we have an employer who is not willing to negotiate with employees. The employer in this case will use every avenue possible to avoid negotiating. If he feels somebody is shouting for his or her rights within that employment, he will see him or her as a troublemaker, seek out the person and dismiss him or her. This amendment provides an additional protection. It does not take from the 1977 Act or from this legislation. I see no reason not to accept Deputy Rabbitte's amendment.
I suppose if an employee is dismissed unfairly, the union is likely to collapse the process and take industrial action. Looking at the way Deputy Rabbitte's amendment is framed, only a trade union or accepted body can make an application under section 2, an employee cannot. That is another technical point.
Neither of those technical points cut ice. The union would be mad to take industrial action unless it had the muscle, members and wherewithal to do so effectively, otherwise we would not be in this position. It would have taken industrial action originally if that situation existed. That will not help. What was the Minister's second point?
The wording of the amendment is inadequate in that only a trade union or accepted body can make an application.
I do not see how that is any good to the worker who is sacked, that is, that it was his trade union which initiated section 2. I presume the reason the Minister's officials are madly hanging on to this imbecilic legislation is that the social partners say this is the way it must be. We have reached a terrible state where we cannot make legislation in the sovereign Parliament but the Minister's officials are afraid that the IBEC or congress will be on their back. It is an extraordinary situation and we are making bad legislation as a result.
We had a discussion earlier and ICTU is anxious to have this legislation in place, in particular in the follow-up to the Ryanair dispute with which we all were very involved. It is worthwhile and it will help the situation. However, there are issues which have come up in the course of this debate, not only here but on Second Stage, and I would be delighted to have them reviewed. At this stage, I cannot accept this amendment but I will be accepting some amendments later.
Does that throw any light on the issue, Deputy Rabbitte?
I am pressing the amendment.
Amendment put.
The Committee divided: Tá, 5; Níl, 8.
Tá
- Currie, Austin.
- Higgins, Jim.
- Higgins, Joe.
- Naughten, Denis.
- Rabbitte, Pat.
Níl
- Brady, Martin.
- Callely, Ivor.
- Daly, Brendan.
- Kitt, Tom.
- Lenihan, Conor
- McGuinness, John.
- O’Flynn Noel.
- O’Keeffe Batt.
SECTION 5.
Amendment 10 is consequential on amendment No. 7. Therefore, we will take amendments Nos. 7 and 10 together by agreement.
I move amendment No. 7:
In page 4, subsection (1), line 31, to delete "having regard to" and substitute "determining provisions as to".
This amendment is designed to deal with the peculiar use of the term "having regard to" in this section. The section is concerned with cases where the court may make a recommendation setting out its opinion and, where appropriate, its view as to the action that should be taken "having regard to terms and conditions of employment". The purpose of the legislation is to determine conditions of employment and the language used in the section seems to give rise to a curious ambiguity. I am, therefore, suggesting that the term "determining provisions as to" used in my amendment is more precise, clear and in keeping with the purpose of the Bill than the vague requirement of the courts "having regard to terms and conditions of employment". The purpose is to determine the conditions of employment and I ask the Minister of State to accept the amendment.
The amendment is opposed because the parties have an opportunity, following a recommendation under section 5, to resolve matters. They can agree to vary the terms of the court's recommendation. Use of the word "determining" in section 5 would denote a decision that would be binding in all its provisions. This would not be in keeping with the objective of the section, which is designed to put a non-binding framework to the parties in dispute and give them scope to resolve their differences. It is the intention that a recommendation would apply only in respect of the group of workers to whom it is addressed. The term "having regard to" obliges the court only to take account of the particular employment concerned in framing its recommendations. The proposed amendment goes much further and would mean that the findings of the court would apply to the employment concerned.
This approach gives rise to legal difficulties, a fact the Deputy acknowledged on Second Stage when he envisaged a situation where a minority of the workforce might have a claim and a court finding could be imposed on the majority. During the debate in the Dáil, the Deputy stated:
If 30 employees in a company employing 600 joined a trade union, would a court be prepared to issue a legally binding determination in such circumstances? It seems it would have to tread very warily indeed and, to some extent, that defeats the purpose.
In the recent High Court judgment involving Irish Rail and the ILDA, Justice O'Neill stated, inter alia: “It would seem to me to follow that if agreements are binding on the workers in the grades affected, the unions which purported to negotiate such agreements must have, as their members, a substantial majority of the workers in those grades.”
In my view, the amendment would apply the Labour Court's award to the employment and not just to those involved in the claim. Such an outcome would be open to legal challenge on the basis that the terms and conditions of a majority of workers were changed without reference to those workers and their employer.
I do not believe this is a matter of great moment. As I understand it, the Minister is drawing a distinction between setting the terms and conditions of employment as distinct from setting the terms and conditions of the workers in dispute. I can see merit in his argument and, on that basis, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 11 is related to amendment No. 8 and both may be taken together by agreement.
I move amendment No. 8:
In page 4, lines 34 and 35, to delete subsection (2).
I do not see why the legislation excludes a determination that the employer should engage in collective bargaining with employees. For instance, in the first place it was the lack of the employers' preparedness to engage in collective bargaining that led to the dispute. Therefore, I do not know why it should be excluded in a pointed way in the Bill.
Under section 5(1) the court makes a recommendation and under section 6(1) a determination. Will the Minister of State clarify what are the steps between a recommendation and a determination, particularly in terms of the timescale involved about which we are concerned?
One is binding and the other is not. I will not accept the amendment for the same reasons I outlined earlier. Section 5(2) makes clear that the Labour Court's recommendation shall not cover collective bargaining arrangements and this provision is in line with the agreed approach of ICTU and IBEC. The procedure outlined in the Bill reflects the steps to be taken in processing claims through to finality in cases where collective bargaining arrangements are not in place. Therefore, it would be completely against this approach to accept the amendment which provides for a finding on collective bargaining arrangements.
Section 5(1) specifies the issues to be covered by a Labour Court recommendation. Section 5(2) makes clear that the issue of collective bargaining arrangements is excluded for legal certainty. This is in keeping with the wishes of the social partners. The imposition by the court of procedures for collective bargaining arrangements would be open to constitutional challenge on the grounds of Article 46.1 which confers freedom to disassociate as well as freedom to associate. The Abbot and Whelan judgment was clear that collective bargaining could not be forced on an employer. It stated: "The suggestion that there is a constitutional right to be represented by a union in the context of negotiations with employers in my opinion could not be sustained". The more recent High Court and Supreme Court judgments in the Irish Rail v. ILDA reaffirms the right of an employer not to engage in collective bargaining if he so wishes.
It is necessary to retain section 5(2) for two reasons - to implement the approach agreed by IBEC and ICTU, thus preserving the voluntarist nature of the employer work relationship and to ensure the legislation does not run the risk of breaching Article 46.1 of the Constitution.
The Minister of State explained the difference between a recommendation and a determination. If the employer does not implement a recommendation how long does it take before the case comes before the Labour Court again?
It is extraordinary that the Constitution is used to prevent obliging employers to negotiate with workers who generate their earnings and profits. The fact that ICTU's leadership approved the provisions in this legislation shows how much its teeth have been drawn as an effective fighting organisation representing working people. It is quite incredible.
Section 5 is non-binding. The determination under section 6 could be activated quickly but no specific timescale is mentioned.
A recommendation is made to the employer but if it is not implemented must the trade union go back to the Labour Court? Is that the process?
Yes, so that there is time for both sides to examine the recommendation. It goes back in the first instance to the employers and employees and then it can be activated quite quickly. I do not see why it should not.
Amendment put and declared lost.
Question proposed: "That section 5 stand part of the Bill."
On a number of occasions when the Labour Court has made a recommendation, particularly in regard to loss of employment, has found against the employer and awarded money in settlement to the person involved, the employer has failed to honour the payment and there was no way the recommendation can be made legally binding without the aggrieved person going to the High Court or the claims court. Can this be addressed? It has created anxiety and has led to High Court cases involving people who were awarded settlements which their employers failed to honour. There was not a provision where the Labour Court recommendation could be made binding.
I am aware of the scenario to which the Deputy refers. Under the legislation such cases can be brought to finality. It provides for a lengthy process and enforcement.
It does not appear to be different to the other legislation in this area. I am aware of some cases where people who were awarded compensation in a Labour Court settlement which the company refused to pay had to go to the High Court to seek payment. That takes years.
Normally Labour Court recommendations are non-binding but the provision in this legislation takes them further and brings them to finality through a lengthy process and enforcement.
Can this be applied to other cases?
It depends on the legislation.
Deputy Daly has made an important point. The Minister of State said he would review the Unfair Dismissals Act. Will the Minister consider Deputy Daly's point in terms of bringing forward amendments to that Act in a few months?
I certainly will. I give the Deputy that assurance under the same timescale agreed earlier.
Many people have been frustrated and inconvenienced because a Labour Court recommendation could not be effected without taking further legal action. That is most unsatisfactory and it should be remedied.
Question put and agreed to.
SECTION 6.
I move amendment No. 9:
In page 4, subsection (1), line 38, to delete "an authorised" and substitute "a".
Amendment agreed to.
Amendment No. 10 not moved.
I move amendment No. 11:
In page 4, subsection (2), lines 43 and 44, to delete "but shall not provide for arrangements for collective bargaining".
Amendment put and declared lost.
Section 6, as amended, agreed to.
SECTION 7.
I move amendment No. 12:
In page 5, subsection (2), line 8, to delete "(subsequent to the date of the order)".
This amendment is being made to provide for legal certainty. It is my intention that the court can give retrospective effect to a determination where it considers it appropriate to do so. Deletion of the wording in the brackets will achieve this purpose.
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8.
Amendment No. 13 is consequential on amendment No. 15 and amendment No. 14 is related. We will take amendments Nos. 13, 14 and 15 together by agreement.
I move amendment No. 13:
In page 5, subsection (1), line 12, to delete "The" and substitute "Subject to subsection (2), the".
This amendment should be read in conjunction with my amendment No. 15. The purpose of these amendments is to give the court the discretion to proceed with its investigation where it has been satisfied by a trade union or excepted body that it is reasonable to do so despite the fact that industrial action has taken place.
In amending the Bill in this way, I am responding to an important point made by Deputies on Second Stage, that is, the possibility that a provocation by an employer might precipitate an industrial dispute which would then terminate the process. The argument was also put to me in the Seanad that suspension of an investigation of a dispute by the Labour Court could result in a procedural vacuum and I replied at the time that this section was designed to ensure that the entire procedure of a Labour Court investigation was contingent upon there being no industrial action. However, in deference to the points, I am prepared to give discretion to the Labour Court to decide that, where there might be mitigating circumstances to any industrial action that might justify it continuing its investigation, it can do so. I am effectively responding to the points made in the debate on Second Stage.
I welcome the Minister of State's amendment. My amendment sought to address the same matter because the current wording of section 8(1) means it is entirely inflexible. There is an absolute obligation on the court to cease its investigation if, for example, an employer persuades it that industrial action has been engaged in. There are a myriad of circumstances where industrial action might be engaged in and where it might be very unwise not to give the court the discretion to decide whether to proceed with an investigation to finality. The Minister of State has come about it in a different way by permitting evidence to be heard from a trade union or excepted body that, notwithstanding industrial action having been taken, it is nonetheless reasonable for the court to proceed in all the circumstances with its investigation as envisaged under section 6. That is an improvement which provides some balance because it is very unwise to have an absolute veto or requirement in industrial relations. Life is not like that and the court ought to have the discretion to decide whether proceeding to finality might be productive. It ought not to be prevented from doing that and that is how I read the Minister of State's amendment. In that context, I am satisfied to withdraw my amendment.
Amendment agreed to.
Amendment No. 14 not moved.
I move amendment No. 15:
In page 5, lines 17 and 18, to delete subsection (2) and substitute the following:
"(2) If, having regard to all the circumstances, the Court is satisfied by a trade union or excepted body that it is reasonable to proceed with its investigation or review under section 6, it shall so proceed.
(3) Subsection (1) shall not apply where the procedures provided for by sections 2, 5 and 6 have been exhausted.".
Amendment agreed to.
Question proposed: "That section 8, as amended, stand part of the Bill."
What the Minister has done is a marginal improvement but I do not see why the Labour Court should still have the possibility of not proceeding with an investigation. Why should that be in the gift of the court? In some cases workers are provoked or may have no option but to go on industrial action to prevent a further deterioration in working conditions, the factor from which the dispute originally arose. It leaves the workers concerned in a twilight zone as to whether the court will entertain the complaint. It is a marginal improvement but I am not happy with it.
Question put and agreed to.
SECTION 9.
Amendments Nos. 16 and 17 are related and both may be discussed together by agreement.
I move amendment No. 16:
In page 5, line 19, to delete "After a period of one year" and substitute "At any time".
This is a crucial question within the terms of the Bill which needs to be resolved. This is the provision which allows an employer to put the correction of workers' grievances into "never never" land. We touched on this at the beginning but it bears a little repetition. If a dispute goes to the Labour Court on foot of this legislation and a determination is made which the workers want implemented, there is no reason it should not be done immediately. That is why the workers concerned took action. They wanted redress. Why should an employer be given six months to consider whether he or she will implement the determination in which time workers can do nothing? The Minister of State did not want to answer the earlier question as to precisely what time frame was involved. Even in reducing the amount of time from 12 months to six, with the possible involvement of the Circuit Court and possibly the High Court and given the congestion in both courts, the delay between a determination and its implementation could possibly stretch to 18 months. My amendment states that, at any time from the date of determination, the court may review such determination, on the application of either party to the dispute. That is entirely reasonable. It will be clear in a matter of weeks whether an employer will come to heel and be reasonable, and, if it is clear within a matter of weeks that he or she is not going to be, employees should not have to wait six months.
As I have said since we began discussing this aspect of the legislation, the approach taken throughout the process is to maximise the scope for parties to reach agreement. The amendment proposed will allow either party to apply immediately for a review of a determination without any discussion between the sides. My amendment to section 9 shortens the time scale from 12 months to six. I remind Deputies that the social partners referred to the issuing of a determination which will be binding for a period of one year. I am changing that to six months. This is a reasonable period within which the parties can explore the settlement of outstanding issues in a dispute before considering the possibility of a review. The effect of my amendment is to reduce the period that has lapsed before one can apply for a review, from 12 months to six and provides that a review cannot be applied for after 12 months. It is a reasonable amendment.
I seem to have fallen off the page. I thought I had communicated an amendment to insert "three months" as a reasonable period. The Minister's amendment is, I concede, a faint acknowledgement that Government still has a separate existence from the social partners but it was really absurd to suggest this kind of timescale in the fraught circumstances that would be likely to give rise to a dispute like this. It means the legislation will be little used anyway and certainly will not have any attraction for workers in circumstances where the Minister could not, or would not, answer at the outset of this discussion and on several amendments what would be the reasonable duration for the processing of a dispute from beginning to end.
If a group of workers found themselves in the situation of, say, the Ryanair baggage handlers and were to say to their trade union official that they did not know about the "Kitt" Bill and were to ask how long it would take them to get their few bob, the answer would be that DeputyRabbitte, Deputy Higgins and Deputy Naughten asked the Minister that but he could not tell them, or his officials would not permit him to tell them because it might upset one or other of the social partners in terms of the delicate balance agreed. It is an extraordinary situation and, therefore, the trade union official will have to interpret it and do the best he can. We were certainly talking about two years as we came into the room.
The Minister has now recognised the absurdity of that position in terms of the reality of the dynamic that obtains in a fragile workplace where this kind of ugly dispute is under way. He has brought forward this amendment proposing six months, which is undoubtedly an improvement. I do not think it is a sufficient improvement but it certainly is better than the situation in which we are.
Having jumped through the hoops, observed section 2(1)(a) to (d) and having done everything properly, all one has now is permission for the trade union to go to court. It is not very desirable from any point of view. The Minister has adverted on several occasions so far to the voluntarist nature of the character of industrial relations in Ireland but here one will inevitably end up in the Circuit Court and, judging from the kind of employer about whom we are talking, that is where one ends up. It is a very unsatisfactory odyssey for resolution. Against the downside about which I talked earlier, I am not sure about its value but the social partners are persuaded of its merit. I do not know whether it is to report to their respective annual conferences or whether it is because of its intrinsic merit. They know more than we do, I presume, about the assessment and we do not really have much choice but to go along with it.
Again, I ask Members, in the interest of fairness and balance to Members outside the House, to try to refrain from referring directly or indirectly to such persons. We have seen some movement in relation to the issue of the time period.
May I ask a question now which the Minister asked me not to persist with earlier? In terms of the final lines of section 10——
We are on section 9.
Sorry.
Amendment put and declared lost.
I move amendment No. 17:
In page 5, line 19, after "of" where it firstly occurs, to insert "6 months but not later than".
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.
Amendment No. 18 is in the name of Deputy Higgins and amendments Nos. 19 and 20 are related. We will take amendments Nos. 18, 19 and 20 together by agreement.
I move amendment No. 18:
In page 5, paragraph (a), lines 35 to 37, to delete "within one year from the date on which the determination is communicated to the parties".
This is where we move from the Labour Court to the four gold mines, as a certain magazine describes them - the courts of the land. This is extraordinary and I do not see any proposal from the Minister to foreshorten the time here whereas he makes much of his willingness in section 9 to shorten from one year to six months the possibility of a review by the Labour Court. We are now into the courts of law and this is where workers who have been put upon will come to grief. This is where a recalcitrant employer, with whom this Bill is supposed to deal, can make hay all summer, into the winter and into next spring.
It is inexplicable why the Minister is allowing one year from the date of a determination before an authorised trade union or excepted body can apply to the Circuit Court for an enforcement order. We really must have an explanation for that. We are talking about workers in vulnerable positions. If their working conditions have been severely deteriorated by the employer, if the case has gone through the Labour Court procedure and if the Labour Court has found in favour of the employees and makes a determination in that regard, the Minister is allowing the employer to flagrantly refuse to implement a determination which might be favourable to the workers for a full 12 months before the authorised trade union or excepted body can go to the courts of law.
The amendment is opposed for the following reasons. In response to representations made on Second Stage about the length of the process, I tabled an amendment to section 9 which shortens the timescale for activating a review of the courts' determination from 12 months to six months. Once the determination has been made by the Labour Court, a trade union has two options where an employer does not comply. It can activate the review procedure after six months and apply to the Circuit Court for an enforcement order if, six weeks after the review findings have been communicated, the employer fails to comply with the findings of that review or it can wait for 12 months after the determination and proceed immediately to get the enforcement order, so there are two options.
To allow the Labour Court to specify a different time limit in each case would leave the court open to challenge as to the reasons for varying the time limit from one case to another. It is legally safer to have one specified time limit in a given procedure. As I said, we have allowed for the review after six weeks and if it is not resolved then, they can go to the Circuit Court.
This is most unsatisfactory. The Minister must defend his position because I do not understand it. He stated that an aggrieved trade union or excepted body has two options. A minimum waiting period of six months is required before a review can be initiated. It could take a month or more to carry out the review and the Minister is talking about waiting another six weeks after such a review so the entire process will effectively take a year. The two options are quite similar. Why is the Minister including a provision whereby a recalcitrant employer can wait almost a year and fail to implement a determination made by the Labour Court to ameliorate the working conditions of a group of employees? The employer can then challenge an appeal to the Circuit Court which could take up to six months. Then, if the Circuit Court makes an enforcement order favourable to the employees, the employer can go to the High Court which could take a further six months. The Minister may say he has no control over the Circuit and High Courts but he certainly has control over section 10 of the legislation. He could reduce the one year period to a matter of weeks.
Employers will benefit from the prolonged period and employees will continue to suffer grievously. The chances are they will be harassed and victimised to such an extent that they will be driven out of their employment. That is precisely what happened in Aldi and the Minister should not congratulate himself on the conclusion reached in that dispute. The atmosphere was very poisonous and management's attitude was such that the workers felt it was impossible for them to return to work. Employers will make full use of the foot dragging possibilities the Minister is building in here.
I concur with the arguments advanced by Deputy Higgins. One of the many reasons I do not like this legislation is that it positively invites an end game involving the courts. The legal profession is already overly involved in this area. We are dealing here with a category of employers which, by definition, will not recognise trade unions and, accepting the strictures imposed in regard to naming some of our finest entrepreneurs, these matters will end up in the Circuit Court. That is neither desirable nor in keeping with the tradition of Irish industrial relations practices. People must wait one year from the date of determination being communicated to the parties. That is an unconscionably long time. I do not understand the distinction the Minister is drawing between this and the previous section and I would be grateful if he would explain it again.
In what hopeless circumstances would employees have to find themselves in order to regard this legislation as advancing their case? Presuming their trade union will wish to pursue such a course of action, who could afford to sit around for the specified period of time before having an opportunity to resort to the Circuit Court? I am not convinced trade unions throughout the country will welcome employees wishing to assert their entitlements through the odyssey involved in the Bill and its associated court costs.
I am puzzled by the answer to the question I posed earlier in regard to when a trade union should apply to the Circuit Court for an enforcement order. Is the employer in the position to argue the case de novo at that point or is it simply the enforcement of the order which is at issue? If a case is to be rehashed at that stage, it will really make a nonsense of it. If enforcement proceedings must be taken, I hope the Minister will at least agree to a similar provision here to the six month period agreed in section 9 in terms of the date of the communication of the determination to the parties. Otherwise, workers will have to wait an unconscionably long period to await resolution of the issues affecting them.
It seems the Minister can seek recourse to the court without a trade union being aware that such a course of action is being undertaken. If an enforcement order is flagrantly flouted or breached by an employer, it appears that no penalty applies. This provision seems to apply to a union or excepted body but a significant number of companies do not have recognised unions and individuals are obliged to pursue their own claims in a very cumbersome manner. Are such people excluded by this provision and, if not, how can they take action?
The Minister's amendment goes some way towards meeting my objective in amendment No. 22 which would require the relevant sections of the Employment Equality Act to apply with necessary modification. The Employment Equality Act provides that when an application is made for an enforcement order, the court is only concerned with whether the order should be complied with and not with arguing the case from the outset. That is a very important provision in terms of not permitting the employer to reopen the case at that stage expecting the court to adjudicate on it. I understand the Minister of State requires the court to make a decision in respect of the order without hearing the employer in terms of the substantive issue. Perhaps the Minister of State will address that matter in his reply.
I wish to deal with Deputies Rabbitte's and Daly's concerns regarding the Circuit Court. My amendment No. 21 arose from concerns expressed to me by ICTU that the Circuit Court hearing could involve lengthy debate involving rehearing of the claims the Labour Court heard. I sought advice from the Attorney General's office on this matter which was that the amendment confines the role of the Circuit Court to enforcement of the Labour Court's determination or review as the case may be. This recasting of section 10 will ensure the hearing by the Circuit Court will be confined to the issuing of an enforcement order and will not allow the case to be heard de novo.
On Deputy Higgins's question, I am sure no one wishes to see cases going to the Circuit Court. We wish to ensure that employers and trades unions are given the opportunity to reflect on the outcome of the previous stage before referring the matter still in dispute to the next stage. The approach is consistent with the voluntary approach and is inconsistent with proceeding immediately to the next stage. While I do not accept the Deputy's amendment, I acknowledge that the process should not be dragged out. Therefore, I have introduced an amendment which shortens the timescale for activating the review of a Labour Court determination from 12 to six months. The fastest option open to the trade union is to proceed from section 6 to section 9 and on to section 10(b), which would take eight months. Under section 10(a), the process takes 12 months but the faster option is under section 10(b). I accept the legitimate concerns about the legislation.
Section 7 - I direct this comment to Deputy Rabbitte who asked who would it help - covers retrospection. I am trying to ensure that the process is dealt with as quickly as possible. At the end of the day, the fact that section 7 covers retrospection means it would be worthwhile for people to pursue it and they would not be out of pocket as a result of the process.
Will the Minister of State address my amendment No. 19 which seeks to deal with the matter slightly differently, that is, rather than one year from the date on which the determination is communicated to the parties, to quote the time specified in that determination? Let me give the Minister of State an example. It is reasonably regular that a determination would involve phased implementation of whatever is considered to be the solution. If you had a phased implementation of the determination, as the section stands at the moment, no action could be taken until the very end. Suppose a 3% increase from 1 April was recommended, with a further 3% from 1 June, with the final phase on 1 November, all phases are caught up in this provision that nothing can be done until the very end when the year takes effect.
I come back to the point I made that retrospection would build up in any case. To allow the Labour Court to specify a different time in each case would leave the court open to challenge as to the reasons for varying the time limit from one case to another. My advice is that it is legally safer to have one specified time limit in a given procedure. The question of retrospection will cover theDeputy's concerns.
Amendment put and declared lost.
I move amendment No. 19:
In page 5, paragraph (a), lines 35 to 37, to delete "within one year from the date on which the determination is communicated to the parties".
Amendment put and declared lost.
Amendment No. 20 not moved.
I move amendment No. 21:
In page 5, lines 41 and 42, to delete "an authorised trade union or excepted body may apply to the Circuit Court for an enforcement order" and substitute "on the application of a trade union or excepted body, the Circuit Court shall, without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the determination or review in accordance with its terms or findings, as appropriate".
Amendment agreed to.
Amendment No. 22 not moved.
Section 10, as amended, agreed to.
Sections 11 to 13, inclusive, agreed to.
TITLE.
Amendment No. 23 not moved.
Title agreed to.