Skip to main content
Normal View

SELECT COMMITTEE ON ENTERPRISE AND SMALL BUSINESS debate -
Tuesday, 31 Jan 2006

Employees (Provision of Information and Consultation) Bill 2005: Committee Stage.

I welcome everyone, including Deputy Morgan, who is also attending today's meeting. I remind everyone to turn off their mobile telephones. Apologies have been received from Deputy Pat Breen.

Today's meeting has been convened for the purpose of considering the Employees (Provision of Information and Consultation) Bill 2005. On behalf of the committee, I welcome the Minister of State at the Department of Enterprise, Trade and Employment with special responsibility for labour affairs including training, Deputy Killeen, and his officials. It is proposed to consider the Bill until 4.10 p.m. Is that agreed? Agreed.

SECTION 1.

I move amendment No. 1:

In page 3, subsection (1), line 21, to delete", unless the context otherwise requires".

I am advised the phrase is now redundant following enactment of section 20 of the Interpretation Act 2005. I understand from informal consultation the same amendment may be required elsewhere in the Bill. I await clarification from the Minister of State.

I thank the committee for accommodating us on Committee Stage and Deputy Howlin for tabling this amendment. Some changes may arise from the Interpretation Act 2005, which came into effect on 1 January 2006. It was not in effect when we debated this Bill on previous Stages. I have asked the Office of the Parliamentary Counsel to consider this amendment and any further amendments that may arise in the course of this legislation. I cannot accept this amendment in its current form but I will return to it on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 2, 3 and 49 are related and may be discussed together by agreement.

I move amendment No. 2:

In page 3, subsection (1), to delete lines 22 to 24.

In amendment No. 3 the Minister of State seeks to address the import of this issue. This amendment was proposed to me by the Irish Congress of Trade Unions, ICTU, on the basis that it wants its representatives to be elected rather than appointed. The interpretation section of the Bill states: ""appointed" means, in the absence of an election, appointed by employees, or appointed by the employer on a basis agreed with employees" and ICTU is anxious that roles be filled by elected rather than appointed individuals.

Amendment No. 3 reflects the same concerns that beget amendment No. 2. I have considered the point made by ICTU, Senators and Members of the House on Second Stage. I have tabled amendment No. 3, which states that "the employees and the basis on which that appointment is made may, if the employees so determine, be such as is agreed by them with the employer;". This is considerably more democratic and meets the requirements of the employees to a greater extent than the original text of the Bill. If this amendment were accepted, amendment No. 49 would also arise as it contains the same wording.

With this amendment the Minister of State has adapted the Bill to some degree. I have also had representations from ICTU regarding the strength the Bill as published provided to employers, wherein the employer could have made the appointment in certain circumstances. While the Government amendment modifies the position considerably I support Deputy Howlin's requirement that the employees be responsible for making that appointment.

The Minister has agreed to the amendment.

No, he has not.

Amendments Nos. 2 and 3 are potential alternatives and I present amendment No. 3 as meeting the requirements of employees.

I am minded to withdraw my amendment and support the Government amendment on the basis that, while it does not go as far as I would wish, it makes some effort in this respect.

I believe I have commented sufficiently on this to allow me to table an amendment on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 3, subsection (1), to delete lines 23 and 24 and substitute the following:

"the employees and the basis on which that appointment is made may, if the employees so determine, be such as is agreed by them with the employer;".

Amendment agreed to.

Amendments Nos. 4, 7, 26, 27, 31 and 32 are related and may be discussed together

I move amendment No. 4:

In page 3, to delete line 28.

I have just received the grouping of amendments and may not be able to cross-reference my notes to discuss all amendments. Amendments Nos. 4 and 7 were prompted by representations made to me by ICTU, which wants collective consultation only and not direct consultation. The definition in the Bill appears to be in breach of the directive and the definition of consultation is inconsistent with the definition of article 2 of the directive, in so far as it conceives of direct consultation between employer and employee rather than the employee's representative. The directive solely envisaged consultation between the employee's representative and the employer. The Bill is in violation of the spirit, if not the letter, of the directive and falls foul of the views of ICTU.

Regarding amendment No. 7, ICTU seeks collective consultation only. Information is defined as an issue exercising employers and employees and the definition provided in article 2 of the directive is not clear. Section 1 provides an opportunity for clarification. The Bill's definition is potentially inconsistent with the directive by envisaging transmission of data to one or more employees rather than solely to employees' representatives.

While this may seem complex, the issue is straightforward. Cutting out representative capacity for employees is the issue that is exciting ICTU. I strongly support its views and propose the amendment in my name, while also providing clarification on the definition provided in article 2 of the directive.

I support Deputy Howlin's proposition. This section does not provide for collective consultation only and I am concerned the loophole provided could be manipulated by dubious employers. While I do not suggest that all employers would do so, recent experience shows some would. We must be specific on the need for collective consultation. The Minister and the Taoiseach have spoken of building a real partnership in the workplace. Exposing employees to this level of potential manipulation is dangerous.

The effect of the amendments, along with Deputy Howlin's proposed deletion of section 11, would be to remove the consultation and information process that is already a feature in many places of employment in this country. It works successfully and is the preferred system of employees. It should be allowed for in the interests of allowing maximum discretion. We have sought to provide maximum flexibility between employers and employees in transposing the directive. If we were to remove the option of direct information and consultation we would remove a good practice that is in place, an option that is attractive to many employees and we would penalise companies currently operating practices in advance of what others are doing. The inclusion of direct consultation as an option is beneficial to employees.

The Minister of State is correct in stating that I will oppose section 11 for the reasons that I have formulated in support of amendments Nos. 4 and 7. I would not disagree with much of what he said. Good work practices exist in progressive workplaces that are not organised. I was raised in a trade union household and I have an appreciation and understanding of the value of trade union membership and I support it. There are those who would seek to have the organisation of work in the State without trade unions and see merit in that. That is a short-sighted view.

We should take a moment to discuss and tease out the Minister of State's view on the future of organisation of workers and the consultation processes that exist in the workplace. My difficulty is whether, in citing the good practices in some, he gives succour to the bad practices in others where not only are they not organised, they have a version of direct consultation which is anything but consultation. Unless we are more robust in how we formulate the law, not only will that practice continue but it will spread. That will not only disadvantage workers in the medium and longer term and continue to disadvantage some workers today, it will also be a bad precedent for the future organisation of work standards, future inputs and ultimately productivity in the Irish workplace going forward, to use a phrase I swore I would never use.

Into the future.

I have managed not to use the phrase so far.

It is a midlands or Leinster expression in the first instance.

When I spoke initially, I should have made reference to amendments Nos. 26 and 27, which are amendments to section 8 and amendments Nos. 31 and 32, which are also grouped in this bundle of amendments. They make explicit reference to the requirement that the negotiation of a negotiated agreement involves agreement on whether direct or indirect involvement through representatives would be the case. On Committee and Report Stages in the Seanad, this was teased out at considerable length. I was quite surprised to find the number and types of direct information systems already in place. It would only be fair to give the members a flavour of what some of them are as in a sense it explains why we are trying to ensure maximum flexibility.

The effect of my amendments, were they accepted, would be to include many more methods of information and consultation than we traditionally considered. I am indebted to NCPP research for this information. There are a number of written methods, such as company handbook, employee handbook, newsletters, employee briefings, bulletins, notice boards, memos, information notes, annual reports, circulars and quarterly business updates.

Does the Minister of State define all of these as consultation?

No, these are information provisions. I will come to consultation, which is dealt with on a separate, and also impressive, list. Further information provisions are e-mail, audio conferencing, web-based conferencing, the Internet, Internet databases and webcasts.

Face to face methods of information provision include employee, team, business unit and department briefings. They are important because quite frequently information of interest to one section is not particularly of interest to another. Other methods are large scale staff meetings which happen occasionally, sometimes interdepartmental or organisation-wide meetings, breakfast and lunch briefings and management chain information cascades. I am sure the Deputies would tell me that these really only provide information and do not include the two-way process inherent in information and consultation.

Some direct types of consultation overlap with the previous list and I will exclude them. Direct types of consultation include performance reviews, training and development reviews, employee appraisals, which include 360 degree systems, one-to-one meetings, attitude and employee surveys and suggestion schemes. Besides all of these, which are usually individual-based, group forms of direct consultation are used, including temporary groups established for particular purposes and specific issues. They can be time or issue specific. Permanent groups are far more common. They discuss work related issues on an ongoing basis and revert to management with their views. In practice, there is widespread use of information and consultation to one degree or another.

I am trying to ensure that the legislation will enable best practice in the area to continue. I hope that we will persuade others, including the people to whom Deputy Howlin referred, to follow the example of those doing it better heretofore. I am concerned about those people who do not have good practice.

I am indebted to the Minister of State for the long list he provided. He is correct to state that putting notices on the notice board, e-mailing people or even group hugs do not constitute consultation. We must be clear and we must have a debate on how to have more meaningful interaction. This forum is not the most useful way to do so. I declared my prejudice. I was reared in a trade union household. My father was a trade union official. I see, and always respect, the merits of good trade union representatives.

To have someone external to the process is often helpful from the point of view of both sides of a problem because, by definition, it involves a professional competent individual who is able to take an external view, rather than in-house negotiation, which is often pressurised and in which people cannot see the wood for the trees. It also provides an external overview of comparative norms existing elsewhere in industry. For that reason, and where possible, I tend towards a positive incentive for workers to organise and for work places to be organised.

I do not, however, gainsay the Minister for State's strong view, which is correct, that there are many progressive workplaces that are not organised which have good institutional negotiation and consultation mechanisms in place and work well. It is not those on which I primarily focus, it is those which are neither of the above, which do not have any structured form of meaningful consultation and which can escape the rigours of the directive and the Act by having some pretence at consultation that is less than we would like. I am not sure I will be able to develop my view on this any further. However, I would be interested to hear the Minister of State's response, whether he shares any of my concerns in that regard and whether there is anything further he can do to address the matter.

Like Deputy Howlin, I have been a member of a trade union all my working life.

A very good one.

Perhaps I should also declare an interest. I do not think it arises in this instance. It is important to point out that section 11 provides for employees to make the change from direct involvement in circumstances where they are dissatisfied with how it operates. I do not know whether that is the carrot or the stick. However, it addresses at least some of Deputy Howlin's concern that bad practice is——

Is amendment No. 4 being withdrawn?

We flew across six sections without my noticing. On the basis of what the Minister of State said, I do not think I will make any more progress on it. I wanted to put my views on record.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 3, subsection (1), line 29, to delete "representatives" and substitute "representatives,".

This is a technical amendment. I searched through it to find where the difference was. Apparently——

I looked several times and am still no wiser.

The comma is the difference and is aimed at bringing about consistency throughout the Bill.

Amendment agreed to.
Amendments Nos. 6 and 7 not moved.

Amendments Nos. 8 and 9 are related and will be discussed together by leave of the committee.

I move amendment No. 8:

In page 5, lines 6 and 7, to delete subsection (4) and substitute the following:

"(4) Subsection (3) is without prejudice to section 18(a) of the Interpretation Act 2005.”.

The Minister tabled a parallel amendment since the enactment of the Interpretation Act. In normal circumstances, it always bemuses me that the Government does not accept an amendment if it is correct and insists on tabling its own. I am sure that is due to a technical reason that the Minister of State will outline. Will he explain why amendment No. 9, which proposes to delete the phrase "the Interpretation Act 1937" and replace it with that of "the Interpretation Act 2005", will not also replace the phrase "Subsection (2)" with that of "Subsection (3)"?

There is some confusion about whether the reference in subsection (4) should be to subsection (2) or to subsection (3). The reason I have submitted a different amendment is that the Parliamentary Counsel's office thinks the reference should be to subsection (2).

My legal adviser is never wrong on these matters.

Certainly, that was our experience previously. For the moment, we ask the committee to run with amendment No. 9. If it is necessary, we will accept amendment No. 8, in the name of Deputy Howlin, on Report Stage. I will ask the Parliamentary Counsel to recheck that reference.

As Deputy Howlin has sought leave to withdraw amendment No. 8, we will move on to amendment No. 9——

Chairman, I have not agreed to do anything as yet.

I beg the Deputy's pardon. I thought his intention was to withdraw amendment No. 8.

I was trying to indicate that I agree with the Minister of State's notion that our legal advice will prove to be right. I will withdraw amendment No. 8 in the interim but I will seek leave to resubmit it on Report Stage. Perhaps the Minister of State will communicate further with me on the matter.

Amendment, by leave, withdrawn.

I move amendment No. 9:

In page 5, subsection (4), lines 6 and 7, to delete "section 11(a) of the Interpretation Act 1937” and substitute “section 18(a) of the Interpretation Act 2005.”

Amendment agreed to.
Section 1, as amended, agreed to.
NEW SECTIONS.

I move amendment No. 10:

In page 5, before section 2, to insert the following new section:

2.—It is hereby declared that a self-employed individual may be a member of a trade union for the purposes of the Trade Union Acts 1871 to 1990 and if he or she is such a member, he or she shall not be an undertaking for the purposes of the Competition Act 2002.

Without suggesting that any of my other amendments are unimportant, I believe amendment No. 10 is very important and I want to get the Minister of State's view on it. We have an extraordinary situation whereby the Competition Act 2002, which is an entirely domestic creation that is not consequent on any European Union law or directive, prohibits self-employed individuals from joining trade unions. On the face of it, such a proposition is extraordinary but it affects a wide range of employees, including people in the creative arts. For example, self-employed actors who are sole traders cannot now be members of Irish Equity because the union would breach competition law if it tried to negotiate settlements on their behalf.

The same situation applies to musicians.

Yes, that is the case. I doubt that the extraordinary state of affairs which has arisen was the Department's intention. The more reactionary people within the Department may now have seized upon the current situation but I would be surprised if they envisaged it during the passage of the Competition Bill 2001.

They are not in this room.

Perhaps it was Mr. Fingleton's last shot before he left the Competition Authority. However, it is an extraordinarily regressive and unacceptable situation. I am advised it cannot even be described as a Victorian perspective, as even the Victorian legislation allowed for collective agreements and negotiations. Therefore, the legislation is pre-Victorian in its impetus.

Is the Deputy saying it is unconstitutional?

I am not sure whether it is constitutional. I am of far too humble a legal mind to be prepared to say anything of that nature. Amendment No. 10 would deal with the situation by providing that "a self-employed individual may be a member of a trade union for the purposes of the Trade Union Acts 1871 to 1990 and if he or she is such a member, he or she shall not be an undertaking for the purposes of the Competition Act 2002". Clearly, the first clause in the amendment is redundant inasmuch as self-employed individuals already have the right to join trade unions. However, there is no point in self-employed workers being members of trade unions if the Competition Act prohibits such unions from negotiating collectively on their behalf. I would be surprised if the progressive Minister of State, who has special responsibility for labour affairs, does not agree with that logic.

The Minister of State may be heading for greener pastures as well.

I strongly support amendment No. 10. There have been recent examples of how artists, freelance journalists and others have been victimised somewhat by the Department——

The Deputy is surely referring to the people in the Competition Authority who are losing the run of themselves.

The Department has been unreasonable in its interpretation of the legislation. I entirely support amendment No. 10 because I think it will regularise a situation that, as I am sure the Minister of State will accept, needs correcting.

I am familiar with the issues to which Deputies Howlin and Morgan refer. As, however, the Employees (Provision of Information and Consultation) Bill 2005 will transpose into the law the information and consultation directive, it is not the appropriate mechanism to use to take whatever action might be necessary.

So we will need to wait for other legislation to be introduced.

Although I strongly suspect something of this sort needs to be done at some stage——

The Competition (Amendment) Bill 2005 is currently before the House.

That might help. However, there are concerns that amendment No. 10 would include within its scope professional groups such as solicitors, medical consultants and barristers, on whom we might not take the same view in respect of the Competition Authority's decision. Therefore, the issue is somewhat more tricky than it might seem at first hand. However, the issue simply cannot be dealt with in the context of this Bill.

Why can we not deal with the issue in the context of the Bill, particularly as amendment No. 10 was deemed to be in order?

The Bill's job is to transpose the information and consultation directive. If I was put to it, I could make a wonderfully strong case for doing what Deputy Howlin proposes in amendment No. 10 but the Bill would still not be the appropriate legislation to facilitate that. In any event, the issue is a more complicated challenge that would not be met by agreeing to amendment No. 10 and is really a matter for competition legislation. I should also point out that the Competition Authority is entirely independent in how it performs its duties.

The authority simply adheres to the Department's policies.

Does Deputy Howlin wish to withdraw the amendment until Report Stage?

The issue is important enough to merit a more definitive statement of policy from the Government. If the Employees (Provision of Information and Consultation) Bill 2005 is not an appropriate legislative vehicle, the Competition (Amendment) Bill 2005 that is currently on Second Stage in the House must surely be such a vehicle. I am sure the Minister of State will argue that the latter is primarily about the Restrictive Practices (Groceries) Order 1987 but it also amends the Competition Act 2002. I will certainly seek to use that vehicle if the Bill before us is not the appropriate mechanism but, in the interim, I would like a declaration of Government policy on the matter. Will the Government clarify the issue by tabling an amendment to the appropriate legislation as soon as possible?

I will not be dealing with the Competition (Amendment) Bill 2005, so I cannot give any undertakings in respect of it. However, I can certainly state that I do not consider it appropriate to accept amendment No. 10 in this Bill.

It is not good enough for the Minister of State to say that the amendment is not appropriate. The procedures of the House have determined that amendment No. 10 is appropriate. With all due respect, that is not for the Minister of State to determine. He can argue that the provision should not be within the Bill but he should do so by giving a reasoned argument. He should state whether he agrees with the principle behind the amendment, whether he will introduce similar provisions in other legislation and outline the Government's policy.

We will proceed to——

Will the Minister of State not respond?

I am not sure the Minister of State is offering to make a further response.

I have already made two central arguments against amendment No. 10 and I have made several ancillary points. First, the Bill involves the transposition of the information and consultation directive. Although the issue raised by the amendment is important , it could not be dealt with adequately or appropriately in a Bill dealing merely with information and consultation. The issue to which the amendment gives rise concerns the impact on self-employed individuals of the Competition Authority's decision, which arises from the interpretation of the Competition Act 2002.

A second and equally important point is that amendment No. 10 would not address the issue as adequately as might be desired. Although amendment No. 10 aims to accommodate the situation of members of unions such as Irish Equity, the National Union of Journalists or one of the musicians unions by dealing with the difficulties with which we are familiar, it would also apply to people, such as solicitors, barristers and medical consultants, who are members of professional bodies. In respect of the latter group, one might take a different view of their needs in the context of the Competition Authority's decision under the Competition Act 2005. I am making both arguments. In the context of information and consultation, I am not prepared to accept the amendment because this is not the appropriate legislation in which to include it.

As a former nominee and acting president of the Irish Federation of Musicians, I have a small vested interest but I must ask if the amendment is being pressed.

This is a Committee Stage debate. There is no must about it.

Is the amendment being pressed?

Mr. McHugh

I understand that the Minister of State agrees with the amendment but has been advised not to accept it. It is clear enough.

The Minister of State will have time to consider matters between now and Report Stage. He could give an undertaking to examine the amendment and consider it between now and then.

Is the amendment being pressed?

Yes, but we might be allowed a little further debate. We made a little progress in terms of the previous comment by the Minister of State. Basically, he is talking not of the principle but of the shape of the amendment being appropriate. He took issue with the form of words used. I presume the principle is accepted on that basis. I would be happy to give way to any amendment the Minister of State wants to bring forward on Report Stage, if he would give an undertaking to do so to the committee.

The Minister of State appears to have a very blinkered approach to legislation. I ask him to have a cup of coffee with the Minister for Justice, Equality and Law Reform, who believes that anything can be grafted on to any legislative vehicle going through the Houses. I have dealt with him on legislation in my time and he would bolt on anything to a piece of legislation going through. The Short and Long Titles are not impediments because the Minister changes them at will too, more than once, if necessary, during the passage of a Bill. He is able to graft new Bills on to existing Bills on Report Stage.

I am not asking the Minister of State to go that far but I do not believe he should blanch at the parliamentary outrageousness of taking a minor matter such as that before us, in terms of legislation, which is a serious matter for the people directly involved. He should use it as an appropriate vehicle to amend the Competition Act, or the sake of clarity. That would not change the Competition Act but would refocus the bizarre interpretation of that Act by the Competition Authority. Like me, the Minister of State has endured the current Minister for Justice, Equality and Law Reform.

I have made it clear that the issue of competition legislation is not one for me and that I will have no involvement in it. I am giving no undertakings with regard to it.

We have collective government. Under the Constitution, the Government is responsible for everything.

I have also said that I do not consider this Bill to be the appropriate vehicle, which is why I will not give an undertaking for Report Stage. I cannot do so for something which is not appropriate in this legislation.

Is the amendment being pressed?

I will return to this on Report Stage. I withdraw the amendment on that basis.

Amendment, by leave, withdrawn.

Amendments Nos. 11 and 17 are related and may be discussed together.

I move amendment No. 11:

In page 5, before section 2, to insert the following new section:

"2.—In any disciplinary proceedings against an employee, the employee may be represented by his or her trade union representative regardless of whether or not the trade union concerned is one recognised by the employer.".

This amendment again arises from an issue of current importance and I put it forward for serious debate. It deals with a set of circumstances which has shocked all of us, namely, the failure of Dunnes Stores to implement a Labour Court decision to allow its staff to be represented by unions at disciplinary hearings. The disciplinary hearing in the most recent case relates to a worker who was sacked for wearing a union badge. That is an extraordinary state of affairs and we should have legal certainty that a worker in such a set of circumstances should be entitled to representation by the trade union, regardless of the employer's attitude.

I support the amendment because it is probably acceptable to well in excess of 95% of employers. Unfortunately, when bringing forward legislation, we need to be mindful of that small group of employers who continually try to subvert the right of employees. The recent example cited by Deputy Howlin perfectly illustrates the case. An amendment of this type would be sufficient to ensure that this cannot happen and I urge the Minister of State to accept it.

The Bill does not make provision for disciplinary proceedings against an employee. However, there is an existing code of practice on grievance and disciplinary procedures of which the Deputies will be aware and which deals with this type of situation. The code of practice was drawn up by the Department, the Labour Relations Commission, IBEC, ICTU, the Employment Appeals Tribunal and the Health and Safety Authority. It is a well known code which sets out best practice for addressing grievance and disciplinary matters. With regard to individual representation, the code of practice provides that an employee be given an opportunity to avail of the right to be represented by a colleague or a registered trade union during grievance or disciplinary proceedings. The code of practice states that all principles and procedures set out in the code should apply unless alternative agreed procedures, which conform to the code's general provisions in dealing with grievance and disciplinary issues, exist in the workplace. That is the current position.

As everyone is aware, we have a voluntarist tradition with regard to our system of industrial relations and these procedures have served us well in the past. In the circumstances, I do not propose to accept the amendment but I am sure I will see it on Report Stage.

I am disappointed with the Minister of State's reply because on the previous occasion on which we dealt with him in regard to legislation, there was great openness on Committee Stage. Following his reply, I am no wiser regarding the questions I posed to him in simplistic form. In the case to which I referred, is there an entitlement for that lady to be represented by her trade union?

My understanding is that the matter is being considered by the Employment Appeals Tribunal, which, I understand, has the right to make binding recommendations.

Does the lady have a legal entitlement to be represented by her trade union?

As the Deputy is aware, a further difficulty I have is that it is not open to me to comment on issues before the Employment Appeals Tribunal.

I will ask a hypothetical question. If an employee were in dispute over some issue — for example, wearing a CND badge — and was sacked and the company involved did not recognise the union to which the employee belonged, would that person have a legal entitlement to be represented by the trade union at a hearing?

I understand that the code provides for the right of the employee to have a colleague or a registered trade union represent the employee during the grievance or disciplinary procedures. I understand that this is also the case with regard to the Employment Appeals Tribunal.

Is that code legally binding?

The code is part of the voluntarist tradition but, with regard to the 1999 Industrial Relations Act, I understand that the Labour Court must have regard to the code of practice. On occasion, the Employment Appeals Tribunal makes findings that are binding. I am not sure if that is the case in this instance.

This case clearly demonstrates that the voluntarist tradition, which we would all agree was generally very successful up until now, is not working. Accordingly, the amendment, which is not pushing anyone over the edge, would simply rectify the exposé which has recently occurred. That is surely reason enough to accept it.

With respect, I do not think the effect of this amendment would be to make a Labour Court recommendation binding if it were not so. If I am correct in thinking that the issue is before the tribunal, the systems and alternatives in place have not been exhausted.

I was not talking about making the Labour Court recommendations binding. My point relates to the issue of allowing an employee to have a person represent her with her employer, which is what the amendment involves. It is an extremely tight amendment and would not create World War III.

The point being made by the Deputy is not that at issue regarding representations. The point at issue may well be that the Labour Court decision is not binding in the first instance. However, it is not my understanding that representation is causing the difficulty. I do not know whether the person involved in this case has the support of a trade union representing her at the Employment Appeals Tribunal or whether she had this at the Labour Court. I simply do not know and, therefore, cannot tell the Deputy.

The issue I am trying to tease out is this. I do not wish the discussion to focus entirely on a current individual case, but I can cite it as an instance. Is someone who joins a trade union and is dismissed for some action entitled to be represented by a trade union? That is the net issue, on which I wished to table my amendment for the sake of clarity. Proceedings in an individual case will conclude in due course.

My later responses were directed at the points made about the individual case, but my original response concerned the more general point regarding the code of practice.

Voluntary codes.

Incidentally, the social partners and principal bodies are signed up to it.

I have taken this amendment as far as I can and will withdraw it, but I will seek further advice on the matter.

I will check the other points.

Amendment, by leave, withdrawn.
Section 2 agreed to.
SECTION 3.

Mr. McHugh

I move amendment No. 12:

In page 5, subsection (1), line 26, to delete "50" and substitute "25".

This concerns the right of employees to information and consultation. Fifty is a very large number. The provision also excludes many people working for companies with fewer employees. It would be a fair compromise to substitute 50 with 25.

I will explain the background. Initially we were faced with the choice of applying the legislation to undertakings with 50 employees or establishments with 20. There was a long consultation process and the great majority of those making submissions favoured going with undertakings, the lower limit for which was set at 50 under the directive. We are transposing the directive reasonably faithfully and that is where the figure of 50 originates. Had the alternative approach been taken at an establishment level, the figure would have been 20. However, the approach related to undertakings.

I support Deputy McHugh on this amendment. I hope we will see a significant number of indigenous companies growing because of additional expertise in research and development with some assistance from Government agencies. The figure of 50 was probably geared at much bigger companies — that would have been the psychology behind it. However, we will see a significant number of smaller companies growing to reach a figure of 25, 30, 35 or 40. I, therefore, feel this is a reasonable proposition. It is easy to muster a host of submissions. To make any decision based on the greater number of submissions leaves one dependent on whatever organisation can encourage activism among its members. That is a weak basis on which to rely when it comes to what is good for consultation, employees and the employee number threshold.

Amendment, by leave, withdrawn.

I move amendment No. 13:

In page 5, subsection (2), between lines 28 and 29, to insert the following:

"(a) the provisions and procedures contained in the Industrial Relations (Amendment) Act 2001 and the Industrial Relations (Miscellaneous Provisions) Act 2004,”.

The amendment's purpose is to avoid the fear expressed to me that the Bill, as it stands, might be used to undermine the existing trades union legislation to which I refer by allowing it to be construed without prejudice to that legislation which has already been enacted by the Oireachtas.

These issues were raised very strongly with me in the Seanad on both Committee and Report Stages and I have gone back to check that what Deputy Howlin proposes and is concerned about is already adequately dealt with in the legislation. I am advised that it is very much the case. There is no danger of his concerns being realised.

What is the case?

I must be impartial.

The amendment seeks to ensure provisions and procedures contained in the Industrial Relations (Amendment) Act 2001 and the Industrial Relations (Miscellaneous Provisions) Act 2004 also be included in this subsection, that is, that the Bill be without prejudice to those provisions. It is a very clear requirement in transposing the directive that any obligation to inform and consult thereunder be in addition to existing obligations regarding information and consultation under other legislation. The matter was raised very strongly with me by several Senators and I went back and checked it.

If it is already encompassed, is there any reason it should not be explicit?

I thought about that and one potential difficulty is that it would be very difficult to include an exhaustive list of legislation to include if I accepted that there was a doubt regarding the principle.

Amendment, by leave, withdrawn.
Section 3 agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill".

I oppose the section. Section 4 simply sets out that the Bill will come into effect from a prescribed date, that being before 23 March 2007 for certain categories of employees and so on. By deleting this, we could bring the Bill into operation at its passing, thus avoiding the need to wait until well into 2008 before workers would have the right to consultation envisaged by the EU directive, the transposition of which into Irish law is long overdue. Why the delay?

There is an opportunity under the directive to avail oneself of transitional arrangements. Because the concept of information and consultation is relatively new to many companies, although not to many others, my judgment was that it would be better to allow the larger companies to take the earlier date. It is a relatively short time period. As I explained in both Houses, I was late in publishing the Bill in the first instance, since there were many complex issues on which I thought I might secure agreement but was unable to do so. Bringing it into force has taken nearly a year longer than it should have. I acknowledge this and have explained why. It is not unreasonable to allow smaller companies to see how it operates during a longer lead-in time. Doing it properly will be beneficial to both employees and employers in the longer term.

I do not see why that would apply to section 4(1)(a), whereby the Minister can bring the legislation into force on any date before 23 March 2007. If the Minister wishes to show his good intentions in providing information for companies — not necessarily small ones — he can do so immediately by allowing section 4(1)(a) to enter into force with the passing of the legislation.

Regarding the figure of 150 employees.

It is not included in the Bill. The Minister has until the end of March 2007.

Section 4(1)(a) refers to companies with in excess of 150 employees. I should have transposed this on 25 March 2005. I will do so as soon as the Bill is passed.

The words in brackets are not therefore required.

Will the Minister of State come back to this on Report Stage?

The Parliamentary Counsel advised it was appropriate to include this clause.

I have never seen it before.

I will find out why and provide a note on Report Stage.

Question put and declared carried.
SECTION 5.

I move amendment No. 14:

In page 6, subsection (1), line 17, to delete "a relevant workforce threshold" and substitute the following:

"the relevant workforce threshold in section 4 of the Bill”.

I am told by the Irish Congress of Trade Unions, ICTU, that this amendment is necessary because the issue of thresholds will apply only in the context of determining whether an undertaking has the required number of employees to come under the coverage of the various provisions of the Bill. For this reason, subsection (1) should be specific in its reference. I do not know whether this was teased out in the Seanad.

It was raised in the Seanad. The issue is somewhat complex because there are two references to thresholds in the Bill, in sections 4 and 7.

There are two references to workforce thresholds?

Yes. Section 4 sets out the numbers of employees that must be employed in an undertaking to fall within the scope of the legislation. The numbers are: 150 on 23 March 2005; 100 on 23 March 2007; and 50 on 23 March 2008. These figures refer to the relevant workforce threshold and are necessary because the Bill will be phased in over a period up to 2008 and, at that stage, will apply to all undertakings employing 50 or more. Section 7 includes a further reference to thresholds in the context of the trigger mechanism. This is a distinct and separate reference to thresholds. Section 5 sets out the method of calculation of the workforce thresholds for the purpose of determining whether the legislation applies to a particular undertaking.

The use of "a" rather than "the" in regard to the three thresholds set out in section 4 arises because of the phased basis which applies. A reference to "the" threshold would imply only one threshold. There are three because the provisions are phased in over three years. That is why the Parliamentary Counsel advised we use "a" rather than "the".

I accept the logic of the Minister of State's reply.

Amendment, by leave, withdrawn.
Amendment No. 15 not moved.

I move amendment No. 16:

In page 6, between lines 25 and 26, to insert the following subsection:

"(2) For the purposes of calculating workforce thresholds, all undertakings that are part of a group shall be regarded as a single undertaking.".

I propose this amendment for clarity because it is not clear how groups are to be treated. I am advised this apparent omission may allow for an evasion of the thresholds set down in section 5. I hope that for the purpose of calculating workforce thresholds, all undertakings that are part of a group will be regarded as single undertakings.

Several points arise in this regard and I am grateful to the Deputy for raising the issue. As already discussed, the Bill applies to undertakings. An undertaking is a legal entity such as a company, co-operative, trade union, friendly society, charity and so on. An establishment is a distinct physical entity such as a factory, branch office or retail outlet which is part of a larger legal entity. While the Bill refers to an undertaking, it does not preclude the introduction of information and consultation processes at the level of the establishment. There could be occasions when that might be preferable. It is important to bear in mind that the use of the term "undertaking" in the legislation does not mean that, for instance, a large bank or building society could provide for the introduction of information and consultation in a particular branch even though the number of employees in that branch is less than the relevant workforce threshold figure. On the contrary, we will encourage that as far as we can. This is one of the reasons we have allowed some of the flexibilities in the legislation.

However, the central point Deputy Howlin makes is that there may be a fear that in order to escape the provisions of the Bill, an undertaking might manage to hive off certain elements. Ultimately, that would probably have to be handled in the courts and there is precedent, where it is clear that the intention was to subvert the intention of legislation, for such matters being dealt with robustly in court. We must be clear that we are alert to that danger and I am advised by the Parliamentary Counsel that the Bill deals with this adequately.

There is no reference to "groups"per se.

Would the amendment not strengthen the legislation in any case, notwithstanding that what the Minister of State says is correct?

Is there any reason it would damage the Bill?

I will check this further. I pursued the issue because I did not previously advert to it to the extent I have done in regard to this amendment. It would clearly subvert the intention of the legislation if people are able to pursue such a course of action. I will examine it further for Report Stage but I am assured it is dealt with.

Amendment, by leave, withdrawn.
Amendment No. 17 not moved.
Section 5 agreed to.
NEW SECTION.

Amendments Nos. 18 and 19 are related and may be discussed together.

I move amendment No. 18:

In page 7, before section 6, to insert the following new section:

"6.—(1) In this section "employees' representative" means such trade unions as are representative of the employees or, where there is no such trade union, such persons that are directly elected by the employees in the undertaking.

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

(3) A trade union or excepted body that has members in the undertaking and employees in the undertaking shall be entitled to nominate persons for election to the employee forum.

(4) A person elected to the position of employee representative shall hold that office for a period of no longer than three years.

(5) Where a dispute arises under this section, it may be referred by trade union or excepted body or one or more employees to the court for determination.

(6) If the court finds that the complaint referred to it under subsection (5) is well founded it may direct the respondent to take measures which may include the organisation of new elections.”.

This amendment was proposed to me by the ICTU. Congress's advice is that this definition is more in line with the definition of employee representatives in other employment protection legislation, including the Protection of Young Persons (Employment) Act 1996 and the European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) Regulations 2000, SI 487 of 2000. The amendment is required to ensure employee representatives are elected and that employers are not able to appoint people whom they control. Trade unions should be respected in being able to nominate people to these positions provided they have members in the relevant undertaking, whether or not they are recognised for collective bargaining purposes by an individual employer.

The amendment provides that employee representatives have a fixed term of office and are required to seek a fresh mandate at the end of that period. It provides for trade unions to refer matters of dispute under the subsection to the Labour Court for determination and gives the court the power to order fresh elections where any genuine complaint is upheld. This provides a fair system of transparent election of representation and an appeals mechanism where any aggrieved person has recourse to an independent arbiter in the Labour Court.

It is no great secret that the attainment of some level of agreement on section 6 was one of the factors that delayed the publication of the Bill.

I apologise to the Minister of State. I should have called Deputy McHugh to speak on his amendment No. 19.

Mr. McHugh

I intend to withdraw amendment No. 19.

A considerable amount of work went into preparing section 6. The change in respect of the definition we agreed earlier is a considerable improvement and perhaps addresses some of the concerns expressed by Deputy Howlin.

As section 6 stands, it is a good balance between the interests of all the parties involved. The definition of "employee representative" in the Bill, an employee elected or appointed for the purposes of the Act, is what people would want. The Bill recognises the role of trade unions and undertakings where it is the practice of the employer to engage in collective bargaining negotiations. It is also important to point out that there is no impediment to trade union representatives or members who are employees of an undertaking from standing for election on an equal basis with other employees.

We have made considerable progress in respect of section 6, apart from anything else regarding the definition. When I think of the amount of work that went into preparing it, almost——

Is amendment No. 18 being pressed?

An amount of work went into preparing these amendments. On the first point I made, which was that the definition of "employee representative" captured in analogous legislation is more akin to the definition I propose than that which is in the Bill, is that a fact?

If I remember correctly, there are at least two Acts in which the definition with which we have come forward is in force.

Is that the new definition?

No, it is the old one. Let us say that the less liberal one is the definition in some legislation. That was the reason I did not accept some of these amendments in the Seanad. The quite narrow definition in the Bill, as published, has worked very well in some of them. However, having considered the situation and the implications of information and consultation, I proposed the change of definition I brought forward this morning, which is much more liberal. It has a significantly positive impact on section 6.

To some degree, I accept that what the Minister of State said is correct but amendment No. 18 tightens up the whole ambiguous area. There are liable to be rows and disputes in respect of who is or is not the representative and how that person was or was not appointed. Greater clarity is needed than that provided in the Bill.

The proposition I put in when the matter was sent to me by congress for consideration looked like a fair mechanism. Is the Minister of State saying that the section, as it stands and as helped by the previous amendment we accepted — which I welcomed — is the result of some process of negotiation that cannot be dislodged at this stage? If that is the case, there is no point pursuing the matter further. Does the Minister of State believe that his formulation is better?

A huge amount of work went into the preparation of section 6 as it stands. It would take an extraordinarily strong case to move me when I consider the amount of work that went into it. I concede that congress played a central role in reaching the wording with which we are dealing. I feel more strongly about it in the context of the definition change we accepted in the earlier amendment. We have done much work to strengthen the democratic nature of the consultation process.

One of the two examples to which I referred, but could not remember, earlier is the Safety, Health and Welfare at Work Act, with which we dealt last year and which employs the phrase "selected and appointed from amongst their number". That is how employee representative——

The Minister of State should not reopen that matter. I have already experienced difficulties with that legislation, even though it has only been enacted.

The trade union is not mentioned. The Transnational Information and Consultation of Employees Act is similar legislation in respect of which my predecessor was told there would be enormous difficulty because of the definition. There has been no question in respect of it. Nevertheless, we have a far stronger definition today and I am happier with that.

I accept the Minister of State's argument. I will not dislodge him because clearly he regards my argument as feeble since he would be moved by a strong argument.

The Deputy is doing himself down unnecessarily.

Amendment, by leave, withdrawn.
SECTION 6.
Amendment No. 19 not moved.

I move amendment No. 20:

In page 7, subsection (5), line 35, to delete "section 15(6), 15(7) and 15(9)” and substitute the following:

"subsections (6), (7), (9) and (10) of section 15”.

This is a technical amendment. It arises on foot of an amendment I accepted in the Seanad which displaced some other items. Subsection (10) provides the Labour Court with the power to refer a question of law to the High Court in respect of disputes referred to it. The Parliamentary Counsel has advised that section 6(5) should also contain a reference to the new section 15(10) which is what this technical amendment does.

Amendment agreed to.
Section 6, as amended, agreed to.
NEW SECTION.

Amendments Nos. 21 to 24, inclusive, are related and may be discussed together.

I move amendment No. 21:

In page 7, before section 7, to insert the following new section:

"7.—(1) An employer shall enter into negotiations with the representatives of employees to establish information and consultation arrangements.

(2) Within 6 months from commencing negotiations, the parties shall agree to establish an information and consultation arrangement by means of—

(a) a negotiated agreement under section 8, or

(b) the Standard Rules under section 10 (as set out in Schedule 1).

(3) The period of 6 months referred to in subsection (6) may be extended by agreement of the parties.”.

I am advised that replacing section 7 in the manner I suggest means that employees in undertakings that meet the employees' threshold in section 4 have an automatic right to information and consultation and that the employer is required to enter into negotiation on arrangements for information and consultation with them. It should be remembered that the opt-in provision in the Bill is contrary to the previous practice in this area. I understand that a facility such as this was available in the working time directive and the Government at the time chose not to take it up. I have examined the Seanad debate to see if any rationale or explanation was given as to why the Government has chosen to do it in this legislation.

The reason I tabled amendments Nos. 22 to 24, inclusive, was to establish the trigger mechanism of 10%. In a very large company, it could be a large number of people but 10% is small to trigger the availability of a significant amount of information and consultation in small company, in particular. The Minister of State knows that his Department likes to impose a substantial number of regulations under various headings. I am operating on the basis of reducing the amount of regulation for small businesses, in particular. I want greater certainty to ensure there is not frivolous activity or mischievous petitions being organised for the purposes of being troublesome in a company. A balance must be struck in respect of legitimate concerns about information which any good employer and company should be mindful of anyway. Nevertheless, in order to eliminate the potential for mischief-making, I want a threshold higher than 10%.

In a sense, amendment No. 21, which proposes the removal of the trigger mechanism, runs directly counter to the proposal Deputy Hogan——

I was afraid the Minister of State might make that assertion.

In some senses, whatever about the political implications, it makes my job a little easier. A little part of my job is to find some kind of middle ground. I made that point in the Seanad. There is some validity in the opposing points of view. However, there is a provision in the Transnational Information and Consultation of Employees Act for a trigger mechanism and it is at 10%. There were predictions that it would cause difficulties but it has not done so. I am satisfied that I have struck about as good a middle course as one could in these circumstances.

Is amendment No. 21 being pressed?

I think I will call a division on it.

A Deputy

The Deputy will be on his own.

Deputy Morgan will be with me.

Amendment, by leave, withdrawn.
SECTION 7.
Amendments Nos. 22 to 24, inclusive, not moved.
Section 7 agreed to.
NEW SECTION.

I move amendment No. 25:

In page 8, before section 8, to insert the following new section:

"8.—(1) An agreement establishing information and consultation may be negotiated by the employer and the employee representatives (to be known and in this Act referred to as a "negotiated agreement").

(2) A negotiated agreement shall be—

(a) in writing and dated,

(b) signed by the employer,

(c) approved by the employees,

(d) applicable to all employees, and

(e) available for inspection by those persons and at the place agreed between the parties.

(3) For the purposes of subsection (2)(c), the agreement shall be regarded as having been approved by the employees where a majority of those employees employed in the undertaking who cast a preference do so in favour of the terms of the agreement.

(4) The employer shall ensure that the procedure for the casting of a preference referred to in subsection (3) is confidential and capable of independent verification and of being used by all employees.

(5) A negotiated agreement shall include reference to the following matters:

(a) the duration of the agreement and the procedure, if any, for its renegotiation;

(b) the subjects for information and consultation;

(c) the method and timeframe by which information is to be provided;

(d) the method and timeframe by which consultation is to be conducted; and

(e) the procedure for dealing with confidential information.

(6) At any time before a negotiated agreement expires or within 6 months after its expiry, the parties to the agreement may renew it for any further period they think fit.

(7) If no new negotiated agreement is made by the parties then the standard rules in Schedule 1 of this Act will apply.

(8) A negotiated agreement renewed under subsection (6) within the period of 6 months referred to in that subsection shall be deemed to have remained in force from the date it would otherwise have expired.”.

The purpose of the proposed section is to provide only for collective consultation with employee representatives; that the outcome of negotiations must be approved by secret ballot of all employees; and, in the event of a negotiated agreement not being renewed, that the standard rules set out in Schedule 1 will apply.

I have a number of concerns about the amendment but the central concern is it removes the flexibility in cases where employees have good arrangements in place. If, for example, the words "establishing one or more information and consultation arrangements" were deleted, excellent models in place or which might be put in place would be lost. A substantial number of employees benefit from direct information and consultation and others wish to have the option. I am not prepared to remove that option from them. The legislation provides three options for approving an agreement whereas the amendment reduces the number to one. I am unhappy to reduce the number because I am trying to encourage the maximum level of agreement between the parties without forcing an agreement on them. The imposition of the standard rules of the State would also be unhelpful. On balance, the flexibility provided for in section 8 is more likely to facilitate parties in reaching agreement through a good quality information and consultation process.

This relates to the original issue of how we consider workers should be represented and how to ensure a robust framework is in place. The Minster of State correctly pointed out various models are in operation, many of which are not good. The unfortunate consequence of not having a good model of consultation is not only to disenfranchise or disempower workers but it can also run a business down whereas corrective measures could be taken if a proper system was in place. However, we have had that debate and I will not win on this issue. I have acknowledged the weakness of putting all one's eggs in one basket, as the Minister of State pointed out, in my amendment. The other side of the coin is the weakness of having too many different mechanisms, a number of which may not be strong or effective and may not achieve the purpose the directive intended, which is to provide a robust system allowing all employees to buy into their workplace and to have information and appropriate decision making mechanisms within the workplace.

Amendment, by leave, withdrawn.
SECTION 8.

I move amendment No. 26:

In page 9, subsection (5)(c), line 27, after “provided” to insert the following:

", including as to whether it is to be provided directly to employees or through one or more employees' representatives".

Amendment agreed to.

I move amendment No. 27:

In page 9, subsection (5)(d), line 29, after “conducted” to insert the following:

", including as to whether it is to be conducted directly with employees or through one or more employees' representatives".

Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.

Amendments Nos. 29 and 30 are alternates to amendment No. 28 and all may be taken together.

I move amendment No. 28:

In page 10, subsection (3), to delete lines 18 to 21 and substitute "terms of the agreement, or".

I thank Deputy Hogan for drawing my attention to a difficulty in the legislation. Normally, I would be minded to accept his amendment but I was advised by the Parliamentary Counsel that the wording he has formulated deals with the issue adequately, appropriately and more effectively than Deputy Hogan's amendment. Ultimately, it comes down to the pre-existing agreements, as the Deputy pointed out. The provisions for such agreements would be undermined were this amendment not made.

I thank the Minister for State for partially accepting my amendment and the spirit in which he has accepted it. He is legitimising a number of the issues. I was concerned about existing fora where employees have structures in place, particularly in commercial semi-State companies where partnership committees and subgroups and so on have been established. It would be wrong to dismiss such structures, which have worked for the past 20 years and the Minister of State has acknowledged that in his amendment.

The purpose of amendment No. 29 is to require that pre-existing agreements should be approved by a majority of employees through a secret ballot.

I understand the Deputy's amendment. The sensible flexibility we are providing, which was prompted by Deputy Hogan's concerns, gives us the best of all worlds. I am concerned that it could be made more difficult to introduce these provisions.

If the Minister of State continues to pursue such flexibility, he might have a grand coalition.

Amendment agreed to.
Amendments Nos. 29 and 30 not moved.

I move amendment No. 31:

In page 11, subsection (7)(c), line 1, after “provided” to insert the following:

", including as to whether it is to be provided directly to employees or through one or more employees' representatives".

Amendment agreed to.

I move amendment No. 32:

In page 11, subsection (7)(d), line 2, after “conducted” to insert the following:

", including as to whether it is to be conducted directly with employees or through one or more employees' representatives".

Amendment agreed to.
Section 9, as amended, agreed to.
Section 10 agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."

The debate on this issue goes to the heart of our divergent views on the role of trade unions and organised labour. I oppose the section.

On the plus side from the perspective of the Deputy and others, provision is made under the section for employees who are not happy with a direct system to move to involvement of representatives.

Question put and declared carried.
Section 12 agreed to.
NEW SECTION.

Amendment No. 34 is related to amendment No. 33 and both will be taken together.

I move amendment No. 33:

In page 12, before section 13, to insert the following new section:

"13.—(1) An employer shall not do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her well being in relation to the performance of his or her functions as an employee representative in accordance with this Act.

(2) An employee representative shall be afforded any reasonable facilities, including paid time off, that will enable him or her to perform his or her functions as employees' representative promptly and efficiently. Employee representatives will also, subject to the provisions of section 14, have the facility to avail of the assistance of experts and such experts may accompany an employee representative to meetings of the employee forum when requested. Following the passing of this act and no later than six months following its enactment, the Minister following consultations with representatives of employers and workers will make regulations setting out the minimum facilities to be afforded to employee representatives by their employers.

(3) An employee, a trade union, an excepted body on behalf or with the consent of the employee may present a complaint to a rights commissioner that the employer has contravened subsection (1) in relation to an employee.

(4) A complaint under subsection (3) shall be presented by giving notice of it in writing to a rights commissioner.

(5) Where a complaint is presented to a rights commissioner under subsection (4) the rights commissioner shall—

(a) give the parties an opportunity to be heard and to present any evidence relevant to the complaint,

(b) give a decision in writing in relation to the complaint,

(c) communicate the decision to the parties, and

(d) furnish the Court with a copy of the decision.

(6) A decision of a rights commissioner under subsection (5) shall do one or more of the following:

(a) declare that the complaint is or, as the case may be, is not well founded;

(b) direct that the conduct the subject of the complaint cease;

(c) require the respondent to take such action as in the opinion of the rights commissioner is just and equitable in the circumstances and which may include the payment to the complainant of compensation of such amount which, in the opinion of the rights commissioner, is just and equitable but not exceeding 2 years remuneration in respect of the employee’s employment.

(7) A complaint under this section may not be presented to a rights commissioner after the end of the period of 6 months from the occurrence or, as the case may require, the most recent occurrence of the conduct to which the complaint relates.

(8) Notwithstanding subsection (6), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (6) but not later than 6 months after such expiration, if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

(9) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.

(10) A rights commissioner shall maintain a register of all decisions made by him or her under this section and shall make the register available for inspection by members of the public during normal office hours.

(11) A party concerned may appeal to the Court a decision of a rights commissioner under section 5 and if the party does so, the Court shall-

(a) give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal,

(b) make a determination in writing in relation to the appeal affirming, varying or setting aside the decision, and

(c) communicate the determination to the parties.”.

I am seeking to make a number of changes through the proposed section to strengthen the meaning of "penalise" within the definition of "victimisation" under the Industrial Relations (Miscellaneous Provisions) Act 2004; to provide redress to an employee victimised by an employer through the Labour Court or through the Rights Commissioner system; to give trade unions the right to represent employees under the section; to have employees granted paid time off work to allow them to carry out their duties as employee representatives; and to require the Minister to make regulations prescribing the minimum level of facilities to be granted to such representatives. The amendment, which basically recognises the role of employee representatives by giving such people status and the facility to do the job in as effective a manner as possible, should be welcomed.

It is obvious that ICTU has strong views on this section. It is concerned about a number of points that have been raised by Deputy Howlin. I would like to address this matter briefly because I may introduce an amendment in this regard at a later stage. It is clear that employee representatives should be given paid time off to prepare cases and to organise their work. I have said enough at this stage.

There was a long and robust debate on this issue in the Seanad. I accepted an amendment, tabled by Senators O'Toole and McDowell, on Committee Stage in that House.

I think we will all have to join the Seanad.

I did not accept as many amendments as I have accepted here. The Seanad was the first House to consider the Bill.

The Minister of State's love of the Dáil is still strong.

I took on board the Senators' amendment, which called for redress procedures to be provided for in the Bill. This is the first time, as far as I can establish, that such procedures have been in place. If a decision of a rights commissioner is not complied with, the decision can be referred to the Circuit Court. A rights commissioner can order an employer to pay compensation in cases of non-compliance. Anyone who examines the Bill as it stands will agree that we have put in place some very strong provisions for the protection of employee representatives. As far as I am aware, the provisions are stronger than those in any previous legislation.

The Minister of State did not deal with the point I made about strengthening and facilitating the work of employee representatives. Why is he opposed to strengthening the meaning of "penalise" to link with the definition of "victimisation" in the legislation to which I referred?

I understand that it might be the same thing. I will ensure that the issue raised by the Deputy is examined and I will return to him in advance of Report Stage.

Very good. I have indicated that I regard this as an important section. I will call for a division on Report Stage if the Minister of State does not return with a satisfactory explanation.

I will get back to the Deputy in this regard as soon as I can in advance of Report Stage.

That is helpful.

The Minister has said he will address this matter on Report Stage.

Amendment, by leave, withdrawn.
SECTION 13.

I move amendment No. 34:

In page 12, subsection (6), line 42, before "Schedule” to insert the following:

"Where there are objectively justifiable reasons to support a complaint,".

I wish to discuss how I can ensure that complaints are referred to rights commissioners only if they are based on reasonable and justifiable, rather than frivolous, grounds. It is not easy to solve this problem, just as it is not easy to define "facilities" in section 13(5), which states that "the granting of facilities under subsection (3) shall have regard to the needs, size and capabilities of the undertaking". It would be interesting to know how that would be defined. I know the Minister of State is a flexible person but there can be some unwarranted flexibility at certain times. There can be grey areas when issues of this nature are being resolved in court. I tabled amendment No. 34 to provide for discussion with the Minister about ensuring that there are justifiable reasons and reasonable, rather than frivolous, grounds for complaints at all times.

I have given some consideration to this issue because I am concerned about issues such as that raised by Deputy Howlin, who argued that employee representatives should have enough time to do their job and should be protected in doing that job. Equally, I am concerned about issues like that outlined by Deputy Hogan. I can understand why people have fears in that regard. I sought the advice of the Office of the Chief Parliamentary Counsel about whether the wording of this section of the Bill adequately meets the various concerns. I have been advised that the wording of the section is adequate to meet Deputy Hogan's concerns. I have given an undertaking to Deputy Howlin that I will give him a briefing about the particular issues he has raised as soon as I can in advance of Report Stage. I can do the same with Deputy Hogan if he wishes.

I am delighted with the Minister of State's response.

Amendment, by leave, withdrawn.

I move amendment No. 35:

In page 12, subsection (7), line 46, to delete "2001" and substitute "2005".

This technical amendment takes account of the Civil Service Regulation (Amendment) Act 2005, which updated the citation.

I thank the Deputy for drawing my attention to the need for this amendment, which I will accept.

Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14.

As amendments Nos. 36 and 37 form a composite proposal and amendments Nos. 38, 39 and 48 are related, amendments Nos. 36 to 39, inclusive, and amendment No. 48 can be discussed together, by agreement.

I move amendment No. 36:

In page 13, subsection (1)(a), line 3, to delete “or”.

Amendments Nos. 36 and 37, which are technical in nature, have been introduced on foot of the advice of the Office of the Chief Parliamentary Counsel. Amendments Nos. 39 and 48 address the concerns of some people who feel that the confidentiality requirement imposed on an employee or third party who receives information in confidence from an individual, as defined in section 14(1), is general and not qualified. I have proposed amendment No. 39 on foot of the advice of the Office of the Chief Parliamentary Counsel to address the concerns which exist in that regard, including that which Deputy Hogan has tried to address in amendment No. 38.

I accept the Minister of State's arguments. His amendments relate to the amendment I have tabled. I agree that the release from confidentiality that is afforded to individuals should be defined. I suggest that the issues to which the release from confidentiality applies should be restricted to those arising "under this Act". The Minister of State's comments have addressed my concerns.

Amendment agreed to.

I move amendment No. 37:

In page 13, subsection (1)(b), line 5, to delete “or”.

Amendment agreed to.
Amendment No. 38 not moved.

I move amendment No. 39:

In page 13, subsection (3), line 18, after "confidentiality" to insert "under this Act".

Amendment agreed to.

I move amendment No. 40:

In page 13, subsection (5), lines 26 and 27, to delete all words from and including "and" in line 26 down to and including "enactment" in line 27.

This amendment will remove the opt-out that allows an employer to refuse to disclose information if such a refusal is permitted by law. I have been advised that the opt-out is unnecessary because it is so wide it will damage the operation of the Bill in many workplaces.

It is a question of striking the right balance in some respects. It would be inappropriate in this legislation to require an employer to disclose information that he is required to refuse to disclose under other legislation. Apparently, there are such instances. I understand that legislation exists under which an employer may specifically refuse to disclose information. This section of the Bill provides that the Bill as a whole will not cut across the provisions of the other legislation in question.

Can the Minister of State cite one example of the other type of legislation to which he is referring?

I do not know whether I have any examples to hand. I suppose it is fair to say that the protections for employees which we have put in place in the interests of balance include the right of employees or their representatives to receive relevant information and to refer matters to the Labour Court, which can use the assistance of a panel of experts to decide what constitutes confidential information. I suppose there was always going to be a point at which it would be impossible to define it so narrowly and tightly that all the various options would be addressed. By putting in place a provision that allowed the matter to be referred to the Labour Court, which could make a determination on it, we felt that everybody's interests could be served and protected.

That is okay.

Amendment, by leave, withdrawn.
Section 14, as amended, agreed to.
SECTION 15.

As amendments Nos. 41 to 43, inclusive, are related and may be discussed together by agreement.

I move amendment No. 41:

In page 13, lines 33 to 43 and in page 14, lines 1 to 39, to delete subsections (1) to (5) and substitute the following:

"15.—(1) Disputes between an employer and a trade union or excepted body or his employees or his or her representatives concerning:

(a) negotiations under section 8 or 10,

(b) interpretation or operation of any agreement under section 8 or 9, or

(c) interpretation or operation of the Standard Rules under section 10 (as set out in Schedule 1) or the procedures for election of employees’ representatives (as set out in Schedule 2),

may be referred by the employer, a trade union or excepted body, one or more than one employee or his or her representatives (or both) to the Court for investigation.

(2) Having investigated a dispute under subsection (1), the Court may make a recommendation in writing giving its opinion in the matter.

(3) Where, in the opinion of the Court, a dispute that is the subject of a recommendation under subsection (3) has not been resolved, the Court may, at the request of—

(a) an employer, or

(b) a trade union or excepted body, or

(c) one or more employees or their representatives (or both),

and may, following a review of all relevant matters, make a determination in writing.

(4) Disputes between an employer and a trade union or excepted body or his employees or his or her representatives concerning—

(a) instances where the employer refuses to communicate information or undertake consultation under section 14(4) or (5),

(b) instances where the employer discloses information to an individual to whom section 14(1) applies subject to the condition that the information is not to be disclosed to a third party due to its confidential nature, or

(c) instances where an individual to whom section 14(1) applies discloses information, which in the legitimate interest of the undertaking has been expressly provided to him or her in confidence, to employees or to third parties not subject to a duty of confidentiality,

may be referred by the employer, a trade union or an excepted body, his or her employees or their representatives (or both) to the Court for determination.".

I tabled amendment No. 41, which proposes to replace sections 15(1) to 15(5) with four new subsections, on the advice of the Irish Congress of Trade Unions. It will remove some layers, which according to ICTU are unnecessary, from the Bill. The amendment will ensure that trade unions can refer matters of dispute to the Labour Court. It will remove the requirement to subject such matters to an internal procedure in the first instance. It will also remove the power of the court to appoint a mediator.

I am not entirely convinced by my own argument, so it will be hard for me to convince the Minister of State. However, I have tabled the amendment for the purposes of discussion. I would be interested in hearing why the Minister of State is proposing the procedure currently outlined in the legislation.

Does Deputy Hogan wish to speak to the amendments?

Yes, I wish to speak to amendments Nos. 42 and 43. The purpose of these amendments is to avoid circumstances where one employee, maliciously or vexatiously, could go to the Labour Court and to preserve the option only for the direct model where it is appropriate and necessary. It is in that context the amendments have been tabled.

Amendment No. 41 provides that specified trade unions or excepted bodies have a right to refer disputes. However, the Bill already provides that one or more employees, or their representatives, may refer a dispute or a complaint to a rights commissioner or the Labour Court, as appropriate. That covers the issue. There is sufficient protection in any dispute scenario. An employee or a representative can obtain advice and assistance from any third party, external to the undertaking, as he or she sees fit. That third party could be a trade union, accountant, lawyer or whoever it might be. There is also a code of practice in this area. The amendment would also remove the role I introduced for the Labour Relations Commission in the Seanad.

On the point raised by Deputy Hogan, an individual who has a right would be in a position to vindicate that right; this is only in a case where the employee has the right. The issue is not as wide in its application as the Deputy fears. Some employer bodies may also be fearful. Once the right of information-consultation has been triggered in an undertaking each employee has the right to make a complaint to vindicate this right, regardless of the system in operation. The provisions of the Bill would be weakened very considerably if any other course of action were taken in this regard.

Amendment, by leave, withdrawn.
Amendments Nos. 42 and 43 not moved.
Section 15 agreed to.
SECTION 16.

Amendments Nos. 44 and 45 are cognate and may be discussed together by agreement.

I move amendment No. 44:

In page 15, subsection (1), line 24, after "oath" to insert "or affirmation".

The Minister of State will probably tell me this is covered by the Interpretation Act 2005. My advice from my normally good legal adviser is that it is not clear that the Interpretation Act 2005 providing for "oath" or "affirmations" would cover all cases. For the purposes of clarity I propose these two amendments.

I thank the Deputy for raising the issue because it is important in the context of modern legislation. I sought the advice of the Parliamentary Counsel who has advised that the amendment is covered by the Interpretation Act 2005. It would be helpful if it is covered because it has implications for much other legislation.

Will the Minister of State please send me a note——

on that issue because that is the point I put to my adviser. He advised there is no clarity in that Act. Such clarity is required because it is not clear that the Interpretation Act 2005 would cover all these particular cases. Lawyers differ.

If we included it in this Bill we would have a concern that every item of legislation in which it was not included——

That is exactly right.

I will have a note sent to Deputy on the matter.

I thank the Minister of State.

Amendment, by leave, withdrawn.
Amendment No. 45 not moved.

I move amendment No. 46:

In page 15, subsection (5), line 45, to delete "A person" and substitute "Subject to subjection (6), a person”.

This amendment was tabled for the purposes of clarity. It seeks to make clear that subsection (6) takes priority over subsection (5).

I am advised that subsection (6) clearly represents an exception to subsection (5) in the context.

Is the Minister of State saying the clarity I am proposing is not necessary?

I propose to substitute the words, "Subject to subsection (6), a person”. I do not think that would cause any damage to it.

The Parliamentary Counsel tells me that is what is already intended and provided for.

It may be intended but whether it is provided for is a matter of dispute.

I am advised it is provided for. Subsection (6) clearly represents an exception to subsection (5) in the context.

:If the Minister of State believes that is clear, I will accept his word.

Amendment, by leave, withdrawn.
Section 16 agreed to.
Sections 17 and 18 agreed to.
SECTION 19.

I move amendment No. 47:

In page 18, subsection (4), line 29, to delete "collective representation" and substitute "representation through employees' representatives".

This is only a technical amendment.

I have seen unity at its best but I have never seen this before.

It was drawn to my attention that we needed to table this amendment.

Amendment agreed to.

I move amendment No. 48:

In page 18, subsection (5), line 33, after "confidentiality" to insert "under this Act".

Amendment agreed to.
Section 19, as amended, agreed to.
Sections 20 to 22, inclusive, agreed to.
SCHEDULE 1.

I move amendment No. 49:

In page 21, paragraph 1(2), to delete lines 9 and 10 and substitute the following:

"be appointed by the employees and the basis on which any such appointment is made may, if the employees so determine, be such as is agreed by them with the employer.".

Amendment agreed to.

I move amendment No. 50:

In page 21, paragraph 2(1)(e), line 34, to delete “twice” and substitute “four times”.

This amendment seeks to increase the number of meetings per year for the forum from twice to four times. That is reasonable.

The requirement in the Bill is that the forum meet twice yearly. The key qualification is that in exceptional circumstances extra meetings can be requested and should not be unreasonably refused by the employer. It is difficult to strike a balance in regard to this matter. One would wish that the process worked in a positive way. In some circumstances two meetings will probably be more than enough.

The point is that there is a requirement in the directive, article 4.3, for the delivery of information at a time that enables employees representatives to study it, act on it and consult. In the event that the forum meets only twice yearly that might not provide the opportunity to be faithful to the objective set out clearly in the directive and may be an impediment to proper communication.

It is so difficult to provide for the huge range of possibilities and experiences.

What I am seeking is not excessive.

No. Two meetings per year is reasonable. In some cases four per year would be entirely unnecessary in the sense that there would be so little change.

It is an important issue and it runs counter to the intention in the directive. The Commission would feel that the spirit is better encompassed by at least quarterly meetings of the forum. Will the Minister of State reflect further on the issue?

I will reflect on that for Report Stage.

It is not excessive.

I know it is not excessive.

The word I am searching for is "adequate". I agree to resubmit the amendment on Report Stage.

Amendment, by leave, withdrawn.
Schedule 1, as amended, agreed to.
SCHEDULE 2.

I move amendment No. 51:

In page 23, paragraph 2, to delete lines 2 to 4 and substitute the following:

"(b) a trade union or excepted body that has members in the undertaking.”.

This amendment seeks to widen the definition of a trade union or excepted body for nomination purposes beyond those recognised by the employer to those that are de facto existing among the employees.

As it stands, the Bill recognises the role of trade unions and undertakings where it is the practice of the employer to engage in collective bargaining negotiations. In undertakings where collective bargaining is not the practice, trade union members or officials who are employees of the undertaking would be free to nominate candidates in the same way as any other employees. We have gone more than a fair distance on this issue.

I do not understand how the Minister of State would have a difficulty with that definition of "trade union or excepted body that has members in the particular undertaking". What is wrong with it?

It would not strengthen the position for the individuals concerned.

It is a very clear and simple definition. It is the right one.

I would accept it if there was even a hint that people would be precluded but there is not even a suggestion they do not enjoy the same rights as other employees.

Would the Minister of State not accept it even to avoid doubt?

I do not see a trace of doubt.

Amendment, by leave, withdrawn.
Schedule 2 agreed to.
SCHEDULE 3.

I move amendment No. 52:

In page 23, paragraph 1(1), line 24, before "may" to insert the following:

", where recourse to the internal dispute resolution procedure (if any) usually used by the parties concerned has failed to resolve the dispute,".

The purpose of this amendment is to ensure the dispute resolution machinery of the State would only come into play when everything else had failed at local level. The amendment would ensure there was a genuine attempt at resolution at local level before one used the process of a rights commissioner.

The amendment refers to the specific provision in section 13(1) whereby an employer is alleged to have penalised an employee's representative. The new Schedule allows an employee representative to present a complaint in writing within six months of the date of the contravention and so on. I would accept this amendment reluctantly as it suggests an undermining of this right. We must encourage people to be employee representatives as much as anything else.

The amendment was not intended to undermine an employee's right, rather to ensure the local machinery was brought into play in the first instance instead of getting into the more expensive and confrontational process of the rights commissioner or higher levels of the State's labour relations machinery.

It is open to people to do so but I would not even countenance forcing an employee representative to have recourse to internal disputes resolution machinery as a legal requirement when this is not the case in at least nine other legislative provisions I have examined. I would not like to introduce this measure as I am not convinced it is warranted.

Amendment, by leave, withdrawn.
Schedule 3 agreed to.
Title agreed to.
Bill reported with amendments.

I thank the Chairman and members of the committee, particularly those who took an active interest in the legislation and tabled amendments. We have considerably improved the legislation and I look forward to Report Stage.

I thank the Minister of State, his officials and members of the committee.

Top
Share