Dáil Éireann díospóireacht -
Tuesday, 27 Feb 1990

Vol. 396 No. 3

Industrial Relations Bill, 1989: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Labour (Mr. B. Ahern)

The purpose of the Industrial Relations Bill, 1989 is to put in place an improved framework for the conduct of industrial relations and for the resolution of trade disputes, with the aim of maintaining a stable and orderly industrial relations climate.

I can hardly over-emphasise the importance of the contribution which good industrial relations can make in helping Irish industry to avail of the opportunities and to meet the challenges presented by improving economic conditions and the completion of the internal market. We are now in a period of relative industrial relations peace. The figures for strikes and days lost are at their lowest levels for decades. There is no better advertisement for this country as a location for investment than the fact that in 1989 we had the lowest number of strikes since 1922 when our statistics began. In addition, it is important to note that in the last quarter of 1989 we did not have even one strike about pay. The present climate of industrial peace and calm provides the ideal opportunity to put workable structures and procedures in place. We must ensure that, should industrial relations tensions resurface in the future, disputes can be processed in an orderly way and with the minimum of disruption.

Because of the importance of industrial relations and the disruptive effect which industrial disputes can have, it is not surprising that industrial relations reform has been on the agenda of the Department of Labour ever since their establishment in 1966. A number of very important pieces of legislation have been enacted in the intervening years but these have, in the main, dealt with the employment rights of individual workers. The two fundamental statutes in the area of trade disputes and industrial relations, namely the Trade Disputes Act, 1906, and the Industrial Relations Act, 1946, have remained largely unaltered.

The measures contained in the Bill before the House have their immediate origin in the Programme for National Recovery. The programme committed me to holding discussions with the social partners about changes in industrial relations which, in the words of the programme, “would provide a better framework for collective bargaining and dispute settlement and help to create conditions for employment-generating investment”.

In entering the discussions I was aware that many unsuccessful attempts have been made in the past to secure consensus on fundamental changes in trade dispute and industrial relations law. It was my view that a further attempt to pursue this goal of consensus was unlikely to lead anywhere, given that the respective positions and interests of both sides meant that a true meeting of minds on many specific issues would not be possible. My approach was to identify a number of key areas which I considered needed attention and, having done this, I developed a package of proposals which addressed the major issues. The detailed discussions which I subsequently held on the proposals with the social partners confirmed my view that this was the only basis on which progress was likely to be made.

Reaction to the Bill since its publication suggests that while there are certain aspects on which one side or the other would have reservations, the Bill as a whole contains a workable package of measures capable of providing a sound framework for the orderly conduct of industrial relations in the future.

Industrial relations in practical terms is not some abstract concept but rather the interaction of management, trade unions and employees. This interaction reflects the interests of both sides but it must also take account of the rights and obligations of both sides and the rights of third parties. No Government can legislate for industrial relations peace but the existence of a legislative arrangement can provide a framework within which the interaction of the social partners can take place in an orderly way.

For such a framework to be effective on an ongoing basis it must contain a fair balance, protecting the rights and interests of both sides on the one hand, while at the same time imposing certain constraints and obligations on them. In a system such as ours, which is based on the concept of voluntarism and free collective bargaining, the success of industrial relations procedures and institutions is ultimately dependent on the commitment of both sides and on the willingness of both sides to use them. The measures provided for in the Bill contain a balance and I will be looking to both sides for their fullest co-operation and commitment to making them work. I would like to place on record my appreciation of the spirit in which both sides engaged in the discussions on my proposals and I am confident that with similar goodwill the arrangements provided for will operate successfully and make an important contribution to ongoing industrial relations stability.

I would like to deal now with the provisions of the Bill. These range over a number of areas and can be divided broadly between trade union and industrial relations law. Under the broad heading of trade union law there are provisions to reform trade dispute law, to introduce pre-strike secret ballots, restrict the use of injunctions in trade disputes and to facilitate the further rationalisation of the trade union movement.

Under the broad heading of industrial relations law I propose to establish a new labour relations commission which will have responsibility for a comprehensive range of functions, including the provision of conciliation and advisory services and the drawing up of codes of practice. There are also provisions to amend and improve the procedures governing the establishment and operation of joint labour committees and technical provisions to enable more effective enforcement of employment regulation orders and registered employment agreements. I will now deal with each of these areas in turn.

The statute law in relation to striking and picketing is primarily contained in the five section Trade Disputes Act, 1906, with a number of further provisions in the Trade Union Act, 1941, and the Trade Disputes (Amendment) Act, 1982. The law in this area is not as simple, however, as a reading of the Acts might suggest. Since 1906 there has been a considerable volume of case law arising from the interpretation by the courts of the provisions of the Trade Disputes Act with the result that the law in this area has become extraordinarily complex and its precise limits vague and confusing. As a result the usefulness of the statute law in providing a guide to conduct is diminishing and it is increasingly necessary to look to the case law. However, as far as possible, statute law should provide a clear indicator as to the boundaries of what is permissible in trade disputes.

My approach in the area of trade dispute law is to repeal the Trade Disputes Acts of 1906 and 1982 and to reintroduce the main provisions of these Acts with amendments. An important by-product of this approach is to give the legislation a clear presumption of constitutionality.

Taken in the order in which they appear in the Bill, the main features of the provision relating to trade disputes are as follows: The definition of trade dispute is being amended to exclude worker versus worker disputes. The immunities will no longer apply to disputes involving one worker where procedures have not been followed. Picketing will be confined to an employer's place of business and the present wording whereby picketing can take place "at or near" a particular location will be changed to "at or where that is not practicable at the approaches to". Secondary picketing will be permissible only in situations where workers have a reasonable belief that the second employer has acted in a way calculated to frustrate a strike or other industrial action by directly assisting their employer. An anomaly whereby organising a strike is protected by the immunities but threatening to organise or take part in a strike would appear not to be protected is being cleared up. In future the immunity enjoyed by trade unions in respect of tortious acts shall apply only in the case of acts committed in contemplation or furtherance of a trade dispute. Unions will be required to have a rule in their rule books providing for the holding of secret ballots before engaging in or supporting a strike or other industrial action. In trade disputes where a secret ballot has been held and notice given, the granting of injunctions, particularly ex-parte injunctions, will be restricted.

I would like to go into a number of these proposed changes in some more detail.

The proposal in relation to secondary picketing has generated a certain amount of misunderstanding based on the complexity of the law in this area and the corresponding uncertainty of all those concerned. Let me be very clear about what is being provided for in the Bill. Secondary picketing — that is picketing at the place of business of an employer other than an employer involved in a trade dispute — will be permissible only where the workers in dispute have a reasonable belief that the second employer has involved himself in the dispute by directly assisting the employer who is party to the dispute for the purpose of frustrating the strike or other industrial action. This provision defines secondary picketing in clearly understood industrial relations terms and clarifies the existing confused legal position. There have been strong demands from the employers' side for the total outlawing of secondary picketing but to do so would tilt the balance unfairly to the benefit of employers.

The secret ballot provisions will require every union to have a pre-strike secret ballot rule in their rule book within two years of the passing of the Bill. Among other things the rule will require that all union members, whom it is reasonable at the time of the ballot for the union concerned to believe will be called on to engage in a strike or other industrial action, be entitled to vote, without interference, on whether to engage in industrial action. It should be remembered that many of the larger unions already have pre-strike ballot rules and the holding of secret ballots is normal good practice. The provisions in the Bill are designed to ensure that this good practice is extended to all unions, thus promoting greater order in the conduct of industrial relations.

The provisions on injunctions are closely linked to those on secret ballots. Where a secret ballot has been held and at least one week's notice of industrial action has been given the employer will not be entitled to seek an injunction without giving notice to the union. The granting of ex-parte injunctions, often in a judge's home outside court hours, has been a matter of considerable concern to trade unions for a long time. The Bill also provides that interlocutory injunctions will not be granted in situations where, in addition to having a secret ballot and giving notice, the union establishes a fair case that they were acting in contemplation or furtherance of a trade dispute. These restrictions on the granting of injunctions will not apply in the case of trespass or action likely to cause death or personal injury.

Injunctions are often sought by employers as a bargaining tool and not for the purpose for which they were intended, namely to maintain the status quo pending a full court hearing. Trade dispute cases rarely come to a full hearing. The changes being provided for are designed to reduce recourse to the law courts in industrial relations disputes, while permitting injunctive relief in cases involving trespass, obstruction and so on, thus ensuring that injunctions are still available in genuinely serious situations. The new arrangements will also provide a strong incentive to trade unions to hold secret ballots and give appropriate notice of proposed industrial action to employers.

I would like to turn now to the provisions in relation to trade union rationalisation. It has long been a policy of Ministers for Labour to encourage the rationalisation of the trade union movement. Some progress has been made in reducing the number of unions from 95 in 1970 to 69 today. A feature hidden by the global figure is the very high number of small unions. Some indication of the multiplicity of small unions can be gathered from the following statistics; 18 unions have fewer than 500 members and between them account for a mere 3,400 members, less than one per cent of the total membership. There are as many as 51 unions with memberships of fewer than 5,000, accounting for 70,000 members or a mere 15 per cent of the total membership. It is obvious that despite the rationalisation which has taken place in recent years there are still far too many unions in Ireland. This is bad for industrial relations as it gives rise to inter-union rivalry, a multiplicity of bargaining units and demarcation disputes. The multiplicity of small unions is also bad for members as such unions cannot provide the services required in today's complex working environment.

The amendments to trade union law provided for in the Bill have the complementary goals of further encouraging mergers between unions and discouraging the formation of new or breakaway unions. The Trade Union Act, 1975, permitted the introduction of a system of grants towards expenses incurred by unions in a successful merger. As the prospect of a merger attempt being unsuccessful and the associated expenses can deter smaller unions from attempting mergers, I am providing that unions which attempt a merger, but which fail in the attempt, may claim expenses relating to the two year period prior to the failure.

A further proposed change involves the doubling of the membership requirement for a new union seeking a negotiation licence from 500 to 1,000 members and a substantial increase in the level of the High Court deposit required by such a union. While the present membership and deposit requirements which were provided for in the Trade Unions Act, 1971, have worked well to forestall the establishment of small, poorly financed or breakaway unions in areas already serviced or capable of being serviced by existing unions, experience in recent years suggests that some tightening of the requirements is necessary.

I shall now deal with industrial relations law and the Labour Relations Commission. I would now like to turn my attention to the other major part of this Bill, particularly to the provisions dealing with the machinery for the resolution of disputes. The major institution in this area is the Labour Court which was established by Seán Lemass in 1946 and has served Irish industrial relations well in the intervening years. When the court was established the country was emerging from the constraints imposed by a world war. Large scale industrial development had not yet begun. We now have large industrial and service sectors and are part of the biggest trading bloc in the world, moving towards greater integration in the context of the single market.

Since their establishment the Labour Court have successfully adapted to numerous changes from decentralised to centralised pay bargaining and back again. They have also been called on to deal with a wide and ever changing range of issues which have varied in line with economic and work place developments generally. The court have been responsible for resolving countless disputes thus ensuring enormous savings to the economy in terms of production and exports.

All structures need to be assessed and re-examined from time to time and to say that there is a need for change in the dispute resolution structures is not to take from the major contribution which the court have made. What are provided for in the Bill are measures designed to enhance the contribution which the State machinery can make to the resolution of disputes and to the overall improvement of industrial relations. In particular, the proposals recognise the great contribution which the Labour Court have made and aim at improving and enhancing their status.

There is a clear need for a change in the structure and approach of our industrial relations institutions in order to place primary emphasis on the promotion of good industrial relations and the development of improved industrial relations procedures. There is a need also to shift the main responsibility for dispute prevention and resolution back where it properly belongs — that is, with the parties themselves. The Labour Court have become a court of first resort rather than as the final, authoritive tribunal in industrial relations matters which they should be and which it has always been intended that they should be.

The changes which the Bill provides for in relation to the dispute resolution machinery have four principal objectives: to give a new general responsibility for the promotion of better industrial relations to an appropriate body; to encourage and facilitate a more active approach to dispute prevention and resolution; to restore the original purpose and status of Labour Court investigation and recommendations and to make provision for a number of new functions and services.

The major change provided for is the establishment of a new Labour Relations Commission guided by a tripartite council, with employer, trade union and independent representation. In addition to the overall responsibility for the promotion of good industrial relations, the commission will have a wide range of functions, including the provision of conciliation and advisory services and the development of codes of practice. The equality service and the Rights Commissioner service will in future act as independent units of the commission.

One of the main reasons for establishing the commission is to have a body with primary responsibility for the promotion of better industrial relations. The commission will be well placed to make public pronouncements on industrial relations practices and procedures which need to be changed and to call for legislative or other changes if necessary. The commission will also be able to highlight examples of good practice and encourage others to adopt similar practices. Their pronouncements will carry the authority of a tripartite body and the collective experience of respected experts drawn from the industrial relations field. This promotion of good industrial relations will also be advanced through many of the commission's activities, such as the provision of an advisory service, the preparation of codes of practice and the offering of guidance on such codes, conducting and commissioning research and reviewing and monitoring developments.

A second major objective in establishing the commission is to encourage and facilitate a more active approach to dispute prevention and resolution. A previous attempt to do this within the structure of the court by broadening the statutory terms of reference of conciliation officers and renaming them industrial relations officers had little effect.

There is some evidence now that the parties are showing a greater willingness to settle disputes at an earlier stage but many minor issues are still being referred to the court for a full hearing. The commission will strive to build on this desirable trend to settle disputes earlier by attempting to bring about a change in attitudes so that the responsibility for dispute resolution is shifted back to the parties themselves where is primarily belongs. The attainment of this end will entail a reappraisal by trade unions and employers, especially those who are still attracted to the option of adjudication, of their attitude towards dispute resolution. If a dispute cannot be resolved at the workplace then an industrial relations officer of the commission will facilitate the parties to reach a settlement on their own terms. The parties should be more committed to an agreement that they have worked out together through negotiation than to an adjudication handed down by a third party. The advisory service of the commission will also have an important role to play in the prevention of disputes, but I will return to this point later.

As I mentioned earlier, one major objective in establishing the commission is to restore the original purpose and status of Labour Court investigation and recommendations. Up to the end of the sixties the Labour Court issued about 100 recommendations each year. Over the years since then there has been a dramatic rise in the number of recommendations issued. The figure reached a peak of 1,045 in 1983, declining to 708 in 1988 and 646 in 1989. Part of the explanation for the large increase in the number of recommendations issued by the Labour Court, particularly during the 1970s can be attributed to the central role provided for the court in the resolution of issues which arose in the context of the various national wage agreements.

It would appear that having developed the habit of referring matters to the court for adjudication, the parties to disputes have found it difficult to revert back to settling their own problems. While the decline in the number of issues being referred to the court in recent years is to be welcomed, there are still too many recommendations being issued by the court on relatively trivial matters. This can only damage the status and ultimately the acceptability of Labour Court recommendations.

The increased emphasis given to conciliation through the establishment of the Labour Relations Commission should ensure that more cases are settled at conciliation and that fewer cases are heard by the court. Ultimately, as the parties take more responsibility for their own disputes, there should be a decline in the number of conciliation cases. The intention is that only after exhaustive efforts at conciliation have failed, or in the most exceptional circumstances where the commission waive conciliation, will a dispute be referred to the court. The court will then become a genuine court of last resort in industrial relations rather than a court of almost automatic recourse as at present.

A further major objective in establishing the Labour Relations Commission is to make provision for a number of new functions and services. I have referred already to the fact that the commission will undertake research and will review and monitor developments in the industrial relations area. The commission will also provide an advisory service. Too easy access to the Labour Court in the past has meant that in some cases there has been no examination of underlying problems at workplace level which can give rise to frequent disputes. The conciliation service has found itself in a continous firefighting role. As a result even where an industrial relations officer came to know through frequent contact with an organisation that there were serious deficiencies in workplace industrial relations, pressure of work prevented the officer from giving more than limited attention to advising on how such deficiencies might be dealt with. It is the intention that where such organisations come to the attention of an industrial relations officer in future the officer will be able to suggest that the parties seek the help of the advisory service to be provided by the commission. The advisory service will be in a position to help management and unions in individual employments to examine and review some or all of their industrial relations practices.

The commission will also be charged with drawing up codes of practice in consultation with trade unions, employers and other interested parties. I see this as being a very important task for the commission and it is my intention that codes of practice should provide a valuable source of guidance for employers and trade unions on particular issues. The drawing up of codes is closely related to the commission's function of promoting good industrial relations and improving industrial relations practices. Codes can be a means of highlighting and encouraging the adoption of good practices generally in a particular area. The commission will be able to formulate codes on particular subjects chosen by itself or at my request. It is my intention as soon as the Commission is established to draw a number of areas to its attention which I feel should be given priority as areas where codes of practice would be particularly appropriate. These areas include: a dispute procedure which would set out the procedural stages to be followed before industrial action is taken; provision of information to and consultation with employees on the activities of the undertaking and on decisions likely to affect employees; levels of cover to be provided in the case of disputes in essential services and protection and facilities for workers' representatives in the company. At a later stage I believe the commission could usefully turn its attention to codes on individual grievance procedures and disciplinary procedures. This list is not exhaustive and the commission will, I am sure, have its own ideas on areas where codes could usefully be formulated.

When a code has been drawn up I will be empowered to promulgate it in a statutory instrument. A code can be taken into account in any proceedings before industrial relations bodies and the law courts where it is relevant. Failure to follow a code will not in itself render anyone liable to proceedings.

As Minister for Labour one often hears the case being made that given the voluntarist nature of our industrial relations system legislation on particular issues affecting the interests of employers or trade unions would be inappropriate. Giving the commission responsibility for the promotion of good industrial relations presents a challenge to the social partners to show that voluntarism can work. The commission will give the social partners the opportunity to take action together in promoting good industrial relations in constructive and imaginative ways, in particular through the formation of codes of good practice.

Over the years there have been complaints in relation to the operation of a small number of joint labour committees. The Bill contains provisions to improve the procedures governing the operation and establishment of joint labour committees. There are also a number of technical provisions to improve the enforcement of the terms of employment regulations orders and registered employment agreements. I would hope that the improvements in relation to joint labour committees and employment regulations orders will make the committees more effective. They will also make it easier and more attractive for low paid workers to seek to have new committees established or to seek the registration of agreements.

I am confident that the range of measures provided for in this Bill will make an important contribution to industrial relations in this country. As I said at the outset a stable industrial relations environment is crucial if this country is to realise its full economic and employment potential. The creation of new employment and the preservation of existing jobs remains the number one priority. The experience of the Programme for National Recovery shows how successful an approach based on consensus and with the commitment of all sides to the attainment of common goals can be. The agreements on pay associated with the programme have resulted in a period of stability in pay bargaining and an almost total absence of major industrial disputes related to pay issues. I am confident that with the commitment and goodwill of all sides a further programme can be put in place which together with the measures provided for in this Bill will ensure the continuation of industrial relations peace for the foreseeable future. It is now clear that we can parallel the enviable industrial relations performance of some of our most successful partners in the European Community such as West Germany. That must continue to be our objective. It is obvious that consensus and partnership must replace conflict.

I commend this Bill to the House.

Mrs. Barnes

It is good to be here today and to be able to welcome this legislation which I hope will go a long way towards filling some of the gaps in this area and the whole important area of industrial relations, which is human relations and the valuing of people at work, by their work and through their work. I would also like to think that it is one of a package of measures which the Minister for Labour will be introducing in this session. Before commenting on this Bill I would like to say we on this side of the House are looking forward to the introduction of the legislation regarding part-time workers and also to the legislation which will come about as a result of the discussions by the Minister and his Department with the various agencies regarding the strengthening of the equality laws. I, and I am sure my colleagues on this side of the House, hope that this legislation will not just involve job creation, which is most urgent and essential politically and industrially, but will provide job satisfaction for management, employers and employees.

In the evolution of work, particularly since the industrial revolution, one of the great causes of conflict and enormous injustice has been the concept, which I hope this legislation and new thinking on work and training and the value of work and workers will put an end to and which has created a firm divide between management and worker, that, management, being paternalistically disposed to give a job to workers, they should be eternally grateful and accept whatever conditions pertain to that job.

We have had a long and painful history of industrial relations and of lack of industrial relations regarding attitudes and the devaluing of work done by workers who are the productive unit of all industry and all business. This legislation has come about as a result of agreement and discussion and with the support of employers and employees represented by their trade unions. This has got to be the consensus for the future in regard to justice and productivity and even the basic pragmatism of knowing that it is only through good industrial relations that we get the best from all our workers, also bearing in mind that we are entering an age of enlightenment in civilization regarding work, the concept of work and even the changing structures of work which will add a quality of life not previously enjoyed. That is one of the most exciting prospects and, indeed, the speed at which the change is coming about not only regarding the structures of work but people's attitude to work has got to be acknowledged.

I would like to think that in the Labour Relations Commission being set up by the Minister all the changes which must take place and which are occurring at such a fast rate will be brought about satisfactorily so that work will be enjoyable, productive, satisfying, and, above all, valuable not only for the sake of profit but for the person actually involved in the work. That is the most important aspect.

I do not have to remind the Minister that one of the matters discussed and debated at the recent three day conference under the auspices of the Presidency which he hosted at Dublin Castle was the need for flexibility and what this would entail. It has been described as a double-edged sword. If we had the confidence to structure the boundaries of work in such a way that this would be taken into consideration we would have a valuable work-sharing experience. However, in this challenge we could be dealt a devastating blow. If we find that traditional industries are disappearing, that people are being made redundant, that we are not taking on board very quickly technological changes, providing the necessary skills and training and putting in place a proper industrial relations structure we could be faced with a double-edged sword. On the one had it could cut a bright and shiny future for us with ample job opportunities but, on the other, so many people could be cut down and consigned to the scrap heap where they would end up disillusioned and depressed, which is what is being experienced by many of our unemployed at present.

Our codes of practice, the recommendations the Labour Relations Commission will make and the negotiations between all sides to a conflict or dispute must recognise the need for information. As my colleagues would agree, very often it emerges following the escalation of a dispute, long after both parties negotiate in a civilised and courteous way, that the right information was not available at the right time. The commission must strive, and I welcome their terms of reference, to develop the best code of practice possible. It worries me that much of the data and information garnered by commissions, committees and managements, not because of a lack of goodwill or a wish to deny it to the people who most need it, is not passed on in the most effective, efficient and clearcut way.

Let me introduce at this stage one of the ingredients needed to keep the structures strong and flourishing, and that is educational training. I remind the Minister that many fine reports, some carried out under the aegis of his own Department, have been issued on this topic. The advisory committee on worker participation in their report to the Department of Labour in October 1986 highlighted the educational aspects and the benefits which would accure from having good industrial relations procedures. Our object must be to remove fears. There is no doubt that people react in an illogical way when they feel threatened or when denied information on the true position.

I intend to refer to the importance of worker participation in industrial relations at a later stage but the advisory committee on worker participation in their report pointed out that because of the change in structures there is now a great need to steer managements towards a new style of management, towards forward planning and enduring growth rather than short-term profit. All of us would echo that point. We need to place tremendous emphasis on management training. Old-style management is as out-of-date as the dinosaur and could have disastrous consequences similar to those that would be experienced if very large dinosaurs were to trample our territory.

Aligned with the need for forward planning and the need for management training — this relates to the importance of educational training for all those at work — is the need to use our educational institutions. The advisory committee on worker participation in their report state that a variety of third level educational institutions might be encouraged to develop short course modules on participation for inclusion in economics, social studies and related disciplines. They go on to state that at second level the new transition year programme would seem to be well suited to a special module on the operational merits of participation. We would like to see an expansion of this course in second level schools in a positive, practical and exciting way.

The fact that we do not prepare our young people at second level not alone for the practicalities of work but for the satisfaction of work, disturbs all of us and leads to huge misunderstandings and lack of information which again leads to fear and lack of confidence in one's work management structures. They will have satisfaction and confidence at work if we introduce it at that level and integrate it as a normal part of the development of young people so that they will see work not as some kind of extra layer, without which they are devalued and useless in the community, but as an extension and part of the whole development of themselves as people. It should take on that concept rather than its present negative one. I believe the thinking on the Industrial Relations Bill as introduced, is toward creating not just a structure but a climate in which this type of behaviour, this type of negotiation, this type of understanding could be developed.

I welcome the setting up of the Labour Relations Commission. I note that it will consist of a chairman and six ordinary members — two to be appointed by the Minister, two to be nominated by trade unions and two by employers. In the nineties, on the eve of the great breakthrough I believe will happen in the structures of work, one of the most positive things would be to ensure an equality of representation as between men and women on that board. I would like to think that the trade unions, the Minister and other nominating bodies would ensure an integrated and equal participation by women not alone on this new Labour Relations Commission but on the FÁS training board, at decision making levels in trade unions, and in management. I am not saying this just from the point of view of figures, that because there are so many men, there should be so many women, but there is a far more practical reason based on research into the emerging concept of work, management and human relations that make good industrial relations.

It has been discovered, by enlightened management — and I stress the word "enlightened", that, where positive training and action promotion programmes have been offered to women, many take the opportunity to leave the factory floor where the majority still work, train in management, negotiation, and supervision, where the results have been incredibly good, not just from the point of view of role models being offered to other women and industrial relations in general, but because of the kind of contribution that was made. In the area of good industrial relations it is now recognised that the very characteristics that carried women through negotiating and conciliation — unfortunately there was a lot of passivity in it as well in the past — the assertive conciliation as practised by women, would go a long way. I do not want to take up the time of the Chamber today but I can furnish details of such management initiatives that have had the most tremendous results. Again, this is the result of a balancing of contributions and skills of male and female.

Certainly I am making a special plea for women workers because of the low position from which they start. It is absolutely essential that the Industrial Relations Bill be given the resources through the various commissions and structures being set up, to enlighten, train and develop skills in management and workers. Some of the skills I am talking about are new found skills in the area of technology where people are being edged out and made redundant. We must ensure that those people get an opportunity to be part of the new future.

An essential part of our education, from second level through the various training structures we have at the moment, is the concept of conflict resolution. Within this concept of conflict resolution, people can be taught to negotiate not manipulatively but skilfully. This has worked with the most astonishing results where it has been an integral part of the programme where people did not start off from a stand off position but listened to each other, giving themselves time to evaluate what the other person said. This skill does not come easily because our first conditioned reflex as human beings, is to defend our position to the death and not listen to the other side. The skill of conflict resolution can be learned and can bring the most incredible and positive results. I would like to think that our training programmes would have to provide for this.

As regards letting off steam and not allowing grievances to build up to the extent that they become misunderstood, distorted and destructive, as happens in so many cases, should the commission not think of introducing into the workplace during working hours a certain time each week or month for people to come together without fear of intimidation or a feeling of being threatened and, in a positive way, let the other side know what is annoying them, what is bugging them, before it ever gets to the stage where it is so much more difficult to draw back, and the grievance is not really fundamental?

Let me give just one small example: I believe human relations are basic. Some years ago an industry in Britain was suffering a tremendous amount of bad industrial relations and they did not believe they could continue to operate profitably. They brought in a group of consultants who worked in the background and observed the structures of the workplace over a six month period. That was important because people forgot they were there and were able to study what happened as it happened.

There was a continuous and continuing breakdown in industrial relations where the workers always negotiated across the table for better pay and demarcation and made many contentious and divisive demands. When the final report issued after six months they discovered that the only power the workers perceived themselves to have was the one to bargain for money and demarcation; they saw themselves totally powerless in other areas.

Let me give two examples of what can give rise to grievance and divisiveness. They discovered that the parking facilities allocated to workers and management were commandeered totally by management. Management came in maybe two days a week in their large cars and would leave early but had a very large parking area marked off for them, for the managing director, executive director and so on. Half the time those parking areas were not used. At the same time in this company there was a great need for the plumbers, electricians and other skilled trades' people to be on emergency because of machines breaking down and so on. They had a few subsidiary companies. When the workmen and craftsmen — at that stage they were men so I do not have to make a point here — sought parking space to enable them to carry out emergency work they found it was not available. The demarcation areas were not being used effectively and efficiently by workers who needed them.

The second area of contention was two different places for eating. There was a management restaurant and a workers' canteen. The food on offer in both places may have been pretty much the same but there was a tremendous sense of grievance on the part of workers who felt that their work and need to socialise were regarded as of diminished importance.

All that was taken on board. The demarcation was eliminated. The need of each worker within his section was taken into account and the result was a productive and highly satisfied work team. Some kind of grievance structure was also set up to deal with complaints and prevent them from accumulating in a destructive way that was totally unsatisfactory.

Strikes help nobody but their greatest victims are the workers who go on strike. Nobody wants to do so. We must set up a climate of conciliation and negotiation so that people are not pushed into feeling that strike is their only recourse. We all know people who have been on strike for a month or two only but as a result they can be in debt for so long that the striker and his family lose out fundamentally and it takes them two or three years to recover. No little increase in their pay over a short period can recompense them. Consider also the blow to industry and to our highly industrialised and competitive society.

This industrial relations legislation is urgent and necessary and I hope the new Labour Relations Commission will meet the needs.

I am speaking to the principle of the Bill and Deputy Jim Mitchell will concentrate on details. I would like to see the Labour Relations Commission being involved here. The legislation as drafted, gives responsibility to the commission to highlight examples of good practice, to provide an advisory service, to prepare codes of practice and offer guidance on such codes, to conduct and commission research and review and monitor developments. We welcome the report that will emerge from that. Not alone the commission but all of us on all sides as legislators and workers, will be able to learn much from the monitoring and reports that will be published as a result of this legislation. I hope the resources will be made available — and maybe I am insulting the Minister by suggesting they are not going to be available — for a proper database and bank where all information can be co-ordinated and disseminated, not just in this country but to enable us to stay closely in touch particularly with European performance and European models so that we will have access to the best of all that is available. I hope that we will not necessarily have to learn from our mistakes, but, that through that database and resources used properly, we will have access to well tried models that can work or be adapted for this country. I am a great believer in not having to go out and experiment and explore it all for ourselves. If something good is working that can be adapted to Irish conditions we should use it as effectively as possible. Very often we find ourselves doing very indepth work and thinking we have discovered the wheel, only to find it has been working much more efficiently and effectively in some other area and we just did not know about it. It is important that we use accessibility to information to its fullest. I know the Minister will agree that resources into that exercise will effect a saving.

I welcome the fact that the commission can undertake research. Without research we are going nowhere. It is the foundation stone of all our action. I would like to think that the codes of practice being worked out are not merely to be handed down like the Ten Commandments to Moses but are seen to be good, just, rightful, appropriate and above all fair to both sides, and that both sides know them fully and will accept them. Impositions can lead to much bad human and industrial relations.

I welcome the provision in the legislation regarding joint labour committees. If it were not for the work of joint labour committees in the past and even now, the lowest paid, least organised workers would be even lower paid and in a worse position. I would like to see the joint labour committees extended and expanded to take in all areas of work. In legislation relating to part-time workers this must be taken into consideration. The committees must expand to include certain areas of work where, particularly, women and young people are being exploited, which is immoral and with which, none of us can feel comfortable. We all deplore the high unemployment rate and we should work on all sides to create jobs and decrease unemployment. Regardless of the climate of high unemployment, it is absolutely immoral and unacceptable that young people and others who desperately need a job should be exploited and badly paid. Employers can simply say that if a person does not want a job there are a hundred others who will take it. The lack of morality and justice is enough to make one breathless. We cannot hold ourselves up as a just society as long as that pertains. Change in behavioural attitudes can only be brought about by changes in codes of practice and the introduction of the necessary legislation.

I would like to believe that joint labour committees will deal with such matters as conditions of work. Fundamentally we need a minimum basic wage for all workers and all work, rather than joint labour committees setting out terms of income. I do not believe the necessary improvements for workers will be achieved without the setting of a statutory minimum wage. I see a place for joint labour committees in regard to conditions of work, perhaps concentrating on certain categories of work which require a certain knowledge and expertise. Certainly the joint labour committees should not be the only mechanism for preventing the exploitation of cheap labour.

Section 37 provides for the appointment of equality officers who will operate as an independent service of the commission. I hope the equality legislation will be strengthened to enable these officers to play a strong role.

Women at the trade union conference last weekend referred to the fact that 15 years after the introduction of equality legislation women in industry earn only 67 per cent or 68 per cent of the average hourly earnings of men. This was referred to also at the seminar on the EC presidency. The gap is not narrowing. Training is not focused to ensure that women are brought into the mainstream where they can earn the same industrial wage as men through training and apprenticeship.

Worker satisfaction and confidence in the value of the work being done is very relevant. I will keep my recommendations in this area until we debate other legislation. I hope that no legislation will emerge from the Department of Labour in which this point will not be central.

Co-operation between unions and management should be continued and expanded. We must also consider flexible patterns of working time. Ways must be found to encourage, train and include people. Basic to good industrial relations is the valued, skilled, satisfied and productive worker who does not feel that he or she is an element to produce profit for somebody else but is an integral part of the workforce and part of a satisfying human experience. I commend the Bill.

Mr. T. O'Sullivan

The Labour Party welcome the establishment of a comprehensive industrial relations service envisaged in the establishment of the Labour Relations Commission. Our major reservations on the Bill are basically as follows. We believe that the inalienable right to strike should replace the immunities from prosecution for trade unions in the 1906 Trade Disputes Act. The restrictions envisaged on picketing which do not take account of modern commercial realities worsen the right of workers to take effective industrial action in the case of primary and secondary picketing. We believe that the extention of the secret ballot requirement to cover forms of industrial action other than strikes could prove cumbersome and ignore situations where workers take retaliatory action against what is seen as a blatant injustice by an employer. We believe that the provisions restraining employers from unjustified recourse to injunctions will be easily avoided in practice through third party actions. The removal of the right of the Labour Court to intervene in various industrial disputes on its own intiative or at the request of just one party to a dispute is unnecessary and will undermine the authority of the court. We believe that the power conferred on the Minister for Labour to direct the Labour Court to become involved in a dispute could prove counter-productive despite the best intentions of the Minister of the day. We shall table amendments on these matters on Committee Stage.

As the Bill proposes the establishment of a new body to enhance the industrial relations machinery which has evolved over the past 44 years since the establishment of the Labour Court, I will deal first with the Labour Relations Commission. The functions of the commission which add to existing services are an advisory service, the preparation of codes of practice, research and the commissioning of research. The other functions are in practice exercised by the Department of Labour or the Labour Court.

Of practical concern is the transfer of the conciliation service from the Labour Court to the commission. I would expect that the Minister wants to see a close and effective working relationship between the conciliation service and the court. In practice the commission are to be given the power to decide when the court should intervene in a dispute.

Unless I am misreading the situation, the commission will tend to expand their caseload and attempt to resolve cases to avoid reference to the court. That would be the test of an effective chief executive and I suggest it would depend largely on the personality and ability of the chief executive.

What appears essential to me is a practical step which will link both the commission and the Labour Court in a manner which avoids friction. That would be achieved by nominating the Chairman of the Labour Court as chairman of the new commission. While there is a provision that the chairman and chief executive of the new body can be the same person, that could prove an obstacle to the integration of the commission and the court. In order to prevent any friction from day one, I would suggest that the Minister acknowledge the practical requirement for strong consultation between the court and the commission.

In terms of the new services to be supplied I want to know what level of resources will be put in place behind the commission, if the services are to contribute to better industrial relations. I would ask the Minister to examine the budget and staffing structure of the Northern Ireland Labour Relations Agency who I am told provide the kind of active advisory services in terms of manpower and publications which section 25 proposes. This body is relevant because despite the changes in law in the United Kingdom, industrial relations practice in Northern Ireland remains closer to the position that prevails in this country than in the UK mainland.

The development of an effective industrial relations service would seem to me to require the reassessment of the rôle of the Irish Productivity Centre. It is envisaged that the labour management advisory unit will be transferred to the commission. Is this the extent of the advisory and research service envisaged by the Minister? While I understand the Irish Productivity Centre have provided services of an industrial relations nature, they are also involved in the promotion of employee participation on an active basis. I think a clarification of roles is required and in particular the nature of the advisory service which the commission is to provide — will it be active or simply circulate reports?

When my colleague, Deputy Quinn, as Minister for Labour, proposed the adoption of a right in law to strike to replace the existing immunities from prosecution for trade unions under the Trades Disputes Act, 1906, it appeared to be a controversial proposal. I know some trade union members were concerned that in practical terms any positive right in law to strike would in practice involve a reduction in their capacity to function effectively. The Labour Party believe that it is only a matter of time before successful third party cases for damages could arise from the effects of industrial disputes and once that is established, the position of trade unions and their members would at best be doubtful in this regard and at worst open to the threat of substantial financial loss in the case of protracted disputes.

A majority of unofficial strikes result from some arbitrary action taken by the employer. This emerged from a study of unofficial strikes carried out by the staff of the University of Limerick. While unofficial strikes are indicative of bad industrial relations practices, it is a mistake to point the finger at workers who may be acting in response to what they feel at the time is unreasonable behaviour on the part of the employer.

The provisions in the Bill while extending the immunities in the Trades Disputes Act, 1906, to cover situations where an action could be taken against an individual worker for threatening to break his contract of employment do not provide immunity from tort or from the actual breaking of the employment contract itself. What these issues indicate to me is that despite the difficulties involved in framing a positive right to strike, trade unions and their members will be under some doubt about their own liability to tort until such a right is specified and in wide terms to cover possible actions by third parties affected by industrial disputes.

The section on the rights of workers to conduct peaceful picketing is a step backwards from the present situation. It confines picketing to the premises of the employer in dispute and, because of the limited definition of employer in the Bill, does not guarantee a right to picket where an employer may form a new company to circumvent a strike. This problem arises from a court case in 1959 of the "Roundabout Limited v. Beirne” where the owners of a pub in dispute formed a new company and successfully sought an injunction in the High Court against the union, which ruled that the new company was not an employer.

The question of secondary picketing of employers not directly involved in a dispute but frustrating a strike is obviously one where a balance has to be decided. I know that employer organisations are totally opposed to secondary picketing but in practice industrial and commercial groupings, and particularly those who have related business activities and functions, mean that employers themselves take secondary action in the case of some trade disputes.

I accept that trade unions cannot have an unlimited right to carry out secondary picketing and I completely accept that the health services, in respect of life-preserving services should be exempted from secondary picketing of the premises during a dispute. However, if the right to secondary picketing is to be a real right, it will require a less restrictive interpretation of what constitutes assistance from one employer to another affected by a trade dispute. This is particularly important in the case of disputes where trade union recognition is at issue. Assistance of an indirect nature will enable an employer to ignore Labour Court recommendations and continue in business. I am not suggesting that picketing should be without restriction in such cases but, in practice, trade unions should have the right to supplement pickets of those directly involved with persons authorised in writing by the trade union to take part and who are themselves members of that union. In order to establish the right of employees to take secondary action, it should be sufficient for employees to establish that a company is in the same beneficial ownership as the company in dispute or where relevant, commercial relationships exist between one company and another.

I would also suggest that confining picketing to those employed by an employer is unfair, considering the removal of immunities from those who take unofficial action after a majority have voted to reject a strike. If a majority of employees vote for a strike then their union, or unions if there are more than one, should be allowed to augment the picket line with their members.

Section 14 deals with secret ballots. The requirement for trade unions to carry out secret ballots before strike action is a reasonable proposal in so far as strikes involve disruption of normal business and a loss of wages to employees. This applies whether the strike is of a limited or extended duration. I have deliberately referred to strikes because, before a strike develops, there may well be more limited forms of industrial action which can avoid a strike. If the intention behind this provision is to reduce the incidence of strikes, then the practical realities of industrial relations need to be considered.

Let us suppose an employer changes a condition of employment which affects only a section of his workforce, the workers affected contact the union and demand that action be taken. The employer may refuse to discuss the issue with the trade union official and a work to rule is called by the union to bring the employer to the negotiating table. Such action will not be possible without a secret ballot of all the workers employed in the company and not those affected by the change in their conditions of employment. I suggest that by denying the discretionary powers of unions to instruct their members following consultations, the Minister is making it unnecessarily difficult for trade unions to respond quickly to situations without having to resort to a secret ballot. What I have in mind is that a limited form of industrial action, excluding strikes, should be possible provided a secret ballot is conducted within seven days of the commencement of the action. Effectively this gives a reasonable and limited discretionary power to trade unions to take reasonable action.

On the proposals in section 19 to limit the employer's use of ex parte and interlocutory injuctions, the Labour Party welcome this initiative as overdue. However, we believe it has to be amended to cover third parties seeking injunctions and not just to employers who are a party to a dispute.

We have major reservations on two points with respect to the provisions relating to the Labour Court. First, the repeal of section 18 of the Industrial Relations Act, 1969 takes away the Labour Court's right to intervene on its own initiative in industrial disputes. The court can then only intervene after the commission has requested it to do so, though if both parties request it can still intervene under section 20 of the 1969 Act. I understand that the Labour Court has seldom intervened in disputes on its own initiative and has done so effectively when it has invoked this power. Section 18 of the 1969 Act should be retained.

The Minister for Labour is to be given the power to require the Labour Court to intervene at his request. This power also extends to the commission. While it is reasonable that the Minister can either ask the commission or a third party to investigate a trade dispute and report to him, it is not a useful power for the Minister to have unless he wishes to be seen to intervene in industrial disputes. I am not trying to score points off the present Minister and I think his intervention on many occasions has been extremely helpful; in particular, he intervened very effectively in the ESB dispute. The Minister has been quite effective and I give him due credit for that. However, if he wishes to retain this discretionary power, it should be balanced by at least one of the parties to the dispute indicating they would welcome the intervention of the commission or the court. Otherwise there is a real danger that expectations will be built up that it is the Minister for Labour's job and not that of the commission to monitor industrial relations developments. I am sure the Minister is aware of the dangers involved — that if conciliation talks fail one or more parties to the dispute may turn to the Minister to intervene directly. That would undermine much of what is hoped to be achieved through the establishment of the commission.

I welcome the section on codes of practice. We all know that in well run employments, agreements are honoured. What I would like the commission to do is pioneer "best practice" codes which would have industry-wide acceptance. In a number of spheres of employment, statutory codes of practice may prove essential, not only for the protection of the employee concerned, and here I am thinking of the case of the contract-cleaning workers, but also for the employer who honours agreements.

I welcome the comments of Deputy Barnes. It is very heartening to see the definite shift of the Fine Gael Front Bench in this regard. It is pre-Tallaght. We have in Deputy Barnes the remnants of the Just Society. I do not use the word "remnants" in a derisory sense.

The provision for issuing a ministerial order on a code of practice does not amount to an enabling provision for the Minister to issue a statutory code of practice.

I suggest that where a voluntary code of practice has been agreed by a majority of employers and unions in an industry but is completely ignored by a minority of employers, then the businesses and pay and conditions of the majority should not be undermined by the minority.

A reserve power to issue statutory codes of practice is necessary, and its very existence could prove a useful stimulus for voluntary codes to be observed. I sincerely hope the Minister will take into consideration some of the points I have made and will take the initiative and introduce them by way of amendment on Committee Stage.

Mr. Rabbitte

I have listened to a good deal of philosophy and theory about industrial relations and I, too, hope to engage in some philosophising. Of course, industrial relations do not necessarily always follow the theory, and disputes occur or are threatened for a range of reasons ranging from bugging devices being found behind the radiators in a workplace to the very isolated case of the trade union boss who cannot resist an employer's bottle of wine and promises more than he can deliver. That is not to say that it is not necessary to look at the theory that supports the framework the Minister is trying to advance in this Bill.

I start my assessment of the Bill from the recognition that conflicts of interest between workers and employers are inevitable but, unlike Deputy Barnes I believe that conflicts do not necessarily manifest themselves in the form of industrial disputes. Conflicts of interest between employer and employee are often no more than symptoms of deeper conflicts which arise from many injustices caused by the inadequacies of our economic and social structures. Often the collective bargaining system becomes the battle ground where inadequacies in our social and economic systems are fought out or where they erupt into open warfare. It is often our outdated social and economic structures which generate conflict in the workplace and which continue to make industrial disputes inevitable. Thus, we can see the importance of industrial relations procedures and practices for the economic and social development of the country and for the welfare of the community as a whole.

Even in the changing work environment of today workers generally have only their labour with which to bargain. Any further shift in the balance of power in favour of employers would only foment unrest and lead to greater frustration and alienation. Any increase in restrictive legislation will only lead to a deterioration in industrial relations. Therefore, reform of our industrial relations system must be accompanied by a genuine commitment to real changes in the power structures of our economy. As Deputy O'Sullivan remarked, there is a remarkable degree of convergence between Deputy Barnes and myself on that.

Why should workers who are over taxed and underpaid believe that reform of industrial relations procedures arises from a genuine concern for the economic and social development of the country and the welfare of the community as a whole? Even benign reform will probably mean more strictures, more tightening of procedures, more rules and regulations and perhaps a diminution of traditional rights and entitlements. In return, will they be given some say in decision making in the workplace? Will they be allowed share in expanded profits? Will their pay restraint be translated into jobs for their unemployed brothers and sisters? How do they know that their co-operation will be for the welfare of the community? Will the broad culture of our society begin to reflect more accurately the reality of working life so that we can begin to tackle more effectively the inevitable problems associated with it? Are these all matters that we can put on the back burner once the trade union leaders' assent to certain reforms has been secured?

Not even the union leaders in a static society can guarantee the continuation of the unprecedented period of industrial peace now on record, which we all welcome. Workers are not fools. They know that we have been through a horrific recession. They also know that while workers and their families endured cutbacks and sacrifices, others got wealthy over the same period and that we are now witnessing an unprecedented profits boom. Where are the jobs the union leaders told them — and I include myself here — would be created in return for wage moderation? It would be foolish to think that such unrequited selflessness will continue for another three years. Therefore, we need more than reform of our industrial relations system to win the voluntary allegiance of trade unionists. The outdated social and economic structures which generate conflict in the workplace and which continue to make industrial disputes inevitable must be tackled as well. All in this House, without exception, would like to see industrial conflict minimised. Even those of us who refuse to believe that all our interests are identical or that we are all in this together, or that the earth is flat, believe that the political rather than the industrial arena is the place to contest differences. I am in this House because I realise that the trade union movement alone cannot deliver political change but I recognise the importance of good industrial relations for wealth generation and, I hope, a better standard of living for all our people. I recognise the positive contribution collective bargaining makes to the resolution of most industrial relations problems and I believe that any strengthening of the cornerstone of our industrial relations system is to be welcomed. Does this Bill achieve that objective? I intend to return to this.

Our complex system of collective bargaining and trade union organisation has developed as a response to a variety of political and social economic forces over which we have had little control. Since the traditional role of our trade unions has been defensive, our bargaining systems reflect, more a reaction to our uneven economic development than any deliberately created bargaining system. This was recognised as far back as 1975 in a Johannes Schregle report, which an ILO consultant, was required by Congress to prepare for them. In the report Schregle said, in talking about our industrial relations system in this country.

It is not the result of a deliberate decision, nor is it the result of a logically and rationally thought out plan. It is rather the fruit of a long struggle among different forces, some of which were purely political and some of which had their origins outside this country.

Of course the law and the Constitution provide the general framework within which our system functions but, in reality, the usual practices of employers and trade unions have developed more from the practical local needs than from any central guidelines. Indeed many existing practices and written agreements have grown out of dispute settlements and reflect all the unique circumstances of particular disputes.

This Bill proposes to repeal in its entirety the Trades Dispute Act, 1906. Tens of thousands of trade unionists in this country want the law to intrude as little as possible into the collective bargaining system. This attitude undoubtedly has its origins in the days when the law was used to persecute trade unionists and prevent them joining trade unions. As my former ITGWU colleague, Naomi Wayne, remarks in her book Labour Law in Ireland:

The early unions had to face attacks from all sides. They were subjected to a stream of anti-union legislation, first from the Irish Parliaments and, from 1800 onwards, from the British Parliament. Meanwhile, the judges, in addition to enforcing these anti-union acts developed their own common law prohibitions on union activity. Trade unions, by their mere existence, were declared to be common law criminal conspiracies.

At the cost of considerable sacrifice and with great personal courage workers eventually won the right to join unions as a result of the Trade Union Act, 1871. However, this was not the same as conferring the right to strike. Subsequent to the 1871 Act, workers were still convicted of the common law crime of simple conspiracy. This meant that they committed a crime simply by combining to take strike action. Workers won from Parliament in 1875 a limited freedom to strike in the Conspiracy, and Protection of Property Act which abolished the common law crime of simple conspiracy. A strike thereafter would only be a criminal conspiracy if the participants committed acts which would individually have been unlawful. Not for the first time the Judiciary continued for a quarter of a century thereafter, notwithstanding the 1875 Act, to find ways to penalise trade unionists. Probably the 1901 judgment in the Taff Vale case is the most celebrated. The employees of the railway company went on strike against the victimisation of a colleague. The company were awarded damages but the judges declared that an employer injured by industrial action was not restricted to suing his workers — who had no money anyway — but that they could instead seek damages from the union. In other words, the judges handed the employers a legal method of breaking a trade union which was far more effective than jailing a few of their members. The ensuing outcry eventually lead in 1906 to the enactment of the Trade Disputes Act. In the election which preceded that either the newly born Labour Party or the Liberal Party had a poster which showed a judge handing a whip to an employer which pretty much summed up the climate of that time.

If we intend to buy the Trade Disputes Act a great many trade unionists throughout the country would want us to bury it with some ceremony because, despite its restrictions, it has served them well. Indeed millions of trade unionists in Britain, for example, would hold a similar view; of course that was before the advent of Thatcher.

The Trade Disputes Act removed a number of obstacles in the way of lawful strikes, among them simple civil conspiracies, which was a new method devised in the Quinn -v- Heatham case to circumvent the previous 1875 Act. It made it easier to picket lawfully and it provided that, where it could still be shown that the law had been broken, an employer could only sue the workers or union official involved, thereafter it would be impossible to sue a trade union for calling or supporting a strike or any other form of industrial action.

It is sufficient tribute to the Trade Disputes Act, 1906, to note that despite its shortcomings, three quarters of a century later, no parliament including this one has made any significant improvement on the rights it conferred on working people. I do not believe — and I will argue this later — that the 1989 Industrial Relations Bill brings such improvements. Of course in Britain the arrival of Thatcher and Tebbit has brought only restrictions and regression. There have been only two developments in this area in Irish law since then; the right of workers to form trade unions was written into the Constitution in 1937 and that has since had implications for the legality of the closed shop. The Trade Union Act, 1941, as amended in 1971, restricted the right to negotiate wages and conditions to two types of organisations, authorised unions and accepted bodies.

These Acts have the effect of limiting most of the protections of the Trade Disputes Act to authorised unions and their members only. I conclude, therefore, that it was the intended effect of the Trade Disputes Act to keep the law and the judges out of industrial relations. Use of the law in the preceding century had failed to prevent workers joining unions and indeed use of the law against workers often inflamed rather than resolved disputes. It is worth making a relevant quote from Wedderburn "The Worker and the Law" in support of that argument. He said that most workers want nothing more of the law than that it should leave them alone.

To what extent, therefore, will the Bill we are considering today, which is designed according to the explanatory memorandum "to bring about a better framework for collective bargaining and disputes settlement" contribute to keeping the law and the Judiciary out of industrial relations? I do not anticipate any real improvement although, like all trade union officials, I welcome section 90 of the Bill which terminates the ability of employers, so disgracefully abused in the past, to approach judges over the corn-flakes to get ex parte injunctions.

First, it is evident that since the enactment of the Trade Disputes Act there has been far less use of the law against strikers. However, it is also true that the law continues to be an important feature of Irish industrial relations. In my view there are two reasons for that. The first is that there are deficiencies in the 1875 and 1906 Acts and, secondly, there is a residual lack of sympathy on the part of judges with the spirit of those Acts, Neither the Conspiracy, and Protection of Property Act or the Trade Disputes Act gives any positive right to strike. Deputy Toddy O'Sullivan referred to that in his contribution. We are all aware that the notion of enshrining a positive right to strike was contemplated during the long period the Bill was in gestation. Why we did not get such a commitment I am not sure and the Minister did not address that issue. I should like to ask him to do so when replying. I have an open mind on the question. I can see the undoubted benefits that would derive from having a positive right to strike enshrined in legislation. However, it would also depend on how it would be circumscribed in terms of whether from the point of view of working people it would be an advantage.

The 1875 and 1906 Acts provide that so long as a person can bring himself or herself within the rules they lay down one is protected from liability in common law. Once outside those Acts it is extremely difficult to conduct a strike or picket without falling foul of the old common law prohibition on industrial action. I should like to quote what my former colleague, Naomi Wayne said in the book I referred to in regard to this. She said:

Since the judiciary tend to adopt a narrower rather than a broader interpretation of the statutory rules, it can, even today be difficult to conduct a lawful strike or picket. It can also be difficult simply to know whether your industrial action is lawful or not. Predicting what view of the law a judge will take, and how he will apply the law to the facts of your case, is, in the realm of strikes and picketing, little more than guesswork.

The Bill introduces more, not less, uncertainty and in important respects diminishes the rights of trade unionists. It is a characterisation of the Bill that it imposes additional statutory responsibility on workers where there is no corresponding statutory obligation on employers. There is also evidence of confusion and inability to decide what the objectives are in terms of institutional reform. As a result it is by no means evident to me that the new institutional arrangements will be any more effective as handmaidens of industrial peace. Indeed, I submit that precisely because of the confusion and lack of clarity contained in the new proposals, and the restrictions imposed on the Labour Court, in all probability the new arrangements, if proceeded with, will be less efficient, less effective, more vulnerable to political intervention and more susceptible to internal disputes within the industrial relations machinery.

I took the opportunity of the publication of the Bill to say some positive things about its general thrust. Many of my colleagues in the trade union movement made similar statements at that time. It is true of that response of the trade union movement, and my response, that they were as much motivated by the success of the trade union movement in keeping certain matters out of the Bill as they were motivated by what is in the Bill. It is not that I consider that the Bill does not contain measures that I welcome. I commented on them previously but I am availing of this opportunity to comment on the small print of the Bill. On reading that one finds that the Bill is not the benign instrument from the point of view of trade unionists that one might have been led to believe initially.

The repeal of the Trade Disputes Act, and the re-enacting of the basic formula in that Act where immunities are restricted to persons acting in contemplation or in furtherance of a trade dispute, is generally not surprising and is welcome. However, the courts, as has happened since the 1906 Act, will play a major role in determining the legality of particular disputes. The courts have taken the view that the immunities conferred ought to be construed in reasonable strictness and given no wider scope than the terms clearly provide.

It is safe to presume that the courts would demonstrate a similar approach to the provisions of the Bill but there is a number of very different provisions which, regrettably, will invite the intervention of the courts to a far greater extent than has been the position up to now. Those new provisions, principally in the area of picketing and secret ballots, will broaden the invitation that exists for the courts to intervene. In that sense, rather than limiting the uncertainty that exists, the Bill increases it.

I should like to ask the Minister to comment on the fact that the definition of a worker is different in section 8 from the definition set out at greater length in section 23. I presume that that is not accidental but nonetheless it is central to the Bill for a number of reasons which I am sure the Minister understands. I should like to refer to the definition of an employer. The usual definition of an employer is given but added to it are the words, "having previously worked for that person". The Bill states that an employer means:

...a person for whom one or more workers work or have worked or normally work or seek to work having previously worked for that person;

Why is that last clause included since the Bill is, naturally enough, about the relationship between employers and workers? What happened in the dispute in which I was involved at University College Dublin? In that dispute the employer was a contract cleaning company. The contractor concerned was undercut in the marketplace — fairly or unfairly it makes little difference to the argument — by another contractor who came in and took over the work.

He refused to employ the people who had been working for the previous contract cleaner. There ensued a trade dispute, the purpose of which legitimately under the 1906 Act, was to secure employment for those people, and pickets were placed at UCD in pursuit of employment from the new contractor. In that situation one could not say the people concerned had previously worked for that person.

As I read this Bill, that kind of dispute would now be illegal. That raises the broadest possible questions because the whole trend in many areas has been a proliferation of contracting, contractors and contract labour. On more occasions than I care to recall I was in a situation — especially in the area of contract security and contract cleaning but in other areas as well — where all the workers were dismissed because a particular contractor lost the contract and the new employer may have employed only some of that workforce.

So far as the trade union movement is concerned, people who were working for years at UCD were doing no more than following their work and were entitled to continued employment at UCD, as happened in the case I have instanced, and in several other examples throughout the country. Contract cleaners come and go. Contract security companies are undercut by other contract security companies, and it is imperative that the workers, who have been employed there over a long period, would have the right, if necessary, to prosecute a trade dispute to retain that employment.

What is the position of a prospective employer where somebody takes over a particular enterprise but does not have any employees? Is he similarly excluded from the terms of the Bill? Deputy O'Sullivan referred earlier to the Roundabout Limited v. Beirne case where, by taking a lease on the pub the employer could circumvent the terms of the legislation as it applied to them. I am not exactly clear what the situation is in terms of the categories excluded. The Bill states that:

"worker" means any person who is or was employed whether or not in the employment of the employer with whom a trade dispute arises but does not include a member of the Defence Forces or of the Garda Síochána or a person who under a contract for services personally does not work to provide services for another;

The exclusion of the Defence Forces is a very topical one. I do not know what discussions may have taken place late at night between the Minister and his colleague the Minister for Defence, but seeing that the existing organisation for the Defence Forces are arguing that 75 per cent of enlisted personnel are now in the de facto organisation, is there any reason they could not have been included within the ambit of this Bill? On the question of the contract for service, as distinct from somebody employed in the normal contract, I am not sure about the intent here and I confess to not being certain at this stage what is desirable.

If I look to an authority which I quoted earlier, referring to the old term of "master and servant" he says that modern usage has gradually replaced the terms master and servant with the more egalitarian employer and employee. The latter's contract is still usually referred to as a contract of service. As such it is distinguished from other contracts, such as one of partnership or one in which an employer has work done by an independent contractor. The difference between the contract of service and contract for services has taxed the ingenuity of judges. It is often easy to recognise a contract of service where you see it, but difficult to say wherein the difference lies. That is exactly how I feel about it. On occasion it is quite difficult to make that distinction. I will be coming back to that point on Committee Stage.

It is essential that the Bill be amended to provide for the situation where a person requires an undertaking, or where an enterprise which had previously been the place of employment, will be deemed to be an employer for the purposes of this legislation. There is one distinction between the new definition of a trade dispute and the previous definition, which referred to a dispute between a worker and employer or between worker and worker — the reference to worker and worker has been excised. If that is motivated by what I think, it is probably a good thing; presumably it relates to the old demarcation disputes. That is the kind of dispute we could well avoid and I would not shed any tears if it were removed. However, I am less happy about the definition which I think should include a person who does work or provides services for another. That could be a dubious area of exclusion.

I am very disappointed with the definition of industrial action. I do not think there is any set of circumstances where the current definition of industrial action as proposed in the Bill could be allowed stand. One of the reasons the trade union movement initially welcomed the thrust of the Bill is that there will be a requirement to hold a secret ballot. No one could take any serious objection to a requirement to hold a secret ballot before a strike is called. Indeed, this has been the practice of the major trade unions for many years. The problem is that the definition of industrial action goes far wider than just requiring the holding of a secret ballot before workers can withdraw their labour and go on strike.

There are many forms of industrial action which fall under the colloquial definition of that term and which are endemic to the way business is carried out each day of the week. It is my experience that workers have sometimes engaged themselves in some form of restrictive practice which has resulted in a speedy and satisfactory resolution rather than in a full-scale withdrawal of labour. Such workers will now be required to hold a secret ballot which, in the nature of things, is entirely in conflict with what I am talking about. It is just not on that workers with a grievance, motivated by the neglect Deputy Barnes spoke about, should find themselves in a position where rather than engaging in some modest restrictive practice which would result in a speedy and satisfactory resolution they will be required to hold a secret ballot which will come under the definition of industrial action. What I am referring to here is an overtime ban, a work to rule, a refusal to undertake certain duties or to handle certain goods which have been blacked.

Mr. T. O'Sullivan

Working five or six times a week.

Mr. Rabbitte

That is correct. That happens in the normal course of events. I am not sure from whom the Minister has taken advice on this one but he can have my advice free for what it is worth. All he is doing is inviting a rash of unofficial disputes. That would be the outcome if this definition of industrial action is enshrined in the law. If a requirement to hold a secret ballot is imposed, then the inevitable result will be unofficial disputes.

When one studies the nitty-gritty of the Bill one finds it is a lot less favourable from the trade union point of view than first thought. For example, in a trade dispute is it contemplated to outlaw the normal solidarity action of another group of workers who refuse to handle blacked goods? That would represent a serious diminution of the right of working people and would be a serious adverse reflection on the principle of solidarity which exists among trade unionists. In my view such a provision would prove unworkable. This matter will obviously feature on Committee Stage. The last thing that one wants to be seen doing is opposing the desirability of holding secret ballots but if the holding of a secret ballot is required to meet every grievance which manifests itself in the workplace we will be inviting unofficial action.

The effect of the section on picketing will also be quite different from what one might have first thought. We might as well call a spade a spade and concede that the trade union movement heaved a sigh of relief when they discovered we would not be going down the Thatcher-Tebbitt road in terms of secondary picketing. I concur that this would seem to be, at an initial glance, a far more benign construction and does not absolutely rule out that possibility but when we study it the position does not turn out quite like that. Secondary picketing will be allowed in the circumstances set out in section 11 (2) which refers to a case where the secondary employer has acted in a way calculated to frustrate the strike or other industrial action by directly assisting the employer who is a party to the trade dispute. We should note it does not say it will be legitimate in a case where an employer has acted in a way calculated to frustrate the strike which alone would invite the intervention of the courts in terms of what could reasonably be construed as an action by another employer calculated to frustrate the strike but it is all the one phrase.

The phrase "by directly assisting" I suggest will be a lawyer's paradise. When the trade union movement realise exactly what is intended, they will adopt a very different view from the one of "how fortunate we were to escape the Tebbitt solution". Apart from the difficulty in interpreting the wording and the fact that so many disputes will end up in the courts, it will be a requirement not only to show that an employer is out to undermine the strike but also that he is doing so by directly assisting the employer who is a party to the dispute.

For example, let me go back to the UCD case. What is the situation there? An employer went in there and did fundamental irreparable damage to the strike and was obviously undermining the strike but was not assisting the other employer directly or indirectly. There is any number of such examples of that kind of thing. He was not calculating to frustrate the strike by directly assisting the other employer. He did not give a damn about the other employer; he wanted the business for himself. That is a major alteration in the law on picketing. What, for example, would be the circumstances if we had another postal strike which, I hasten to say, I am not advocating? If we have another postal strike and one of the private courier services decides to deliver the packages or post around the city, they are certainly undermining the strike but they are not assisting An Post directly or indirectly. I do not know whether this is because it has been inadequately thought out or because there is a calculated attempt by the Minister to impose on the trade union movement shackles that they may not initially have seen. Certainly it amounts to serious restrictions on the right to picket. The two examples I have given are of cases that have actually happened and in future it is probable that in the event of such a dispute in An Post one would have more competition from the private courier service or, in the case of a dispute in CIE, one might well have PAMBO or the private hauliers coming to take the opportunity to get a slice of the action and in that case one could hardly say that they are assisting CIE or Iarnród Éireann, but they are most emphatically undermining the strike. In those circumstances there is a very serious restriction in the law on picketing.

There was no restriction on the premises which could be picketed nor was there any restriction on who could make up the picket under existing law and, in the nature and structure of a modern economy, this question of the place of picketing is likely to become more contentious. I must say I am alarmed that it should be sought to impose greater restrictions on who may make up a picket line than has been the practice or than has been imposed by the courts. There have been no such restrictions within reason in the existing situation and, where the courts have seemed to regulate it, it has been because of isolated incidents of alleged violence on the picket line or harassment or nuisance, or whatever and the courts have regulated it in a reasonable manner, confined it to a reasonable number of picketers at any given time, conducting themselves in a certain fashion, peacefully picketing and so on; but there have been no restrictions as is envisaged here.

Let me ask the Minister, for example, what would be the situation as it refers to the Dunne's Stores disputes. There was a dispute which all parties in this House have lauded from time to time, an unselfish action taken by a small number of workers on a principle they deeply held. It is a principle that recommended itself to all sides of this House and many of us found ourselves on Saturdays picketing with these workers outside the local Dunne's Stores. What would be the situation here? As I read it, the picket line may not be augmented by employees or workers other than employees of the employer with whom the dispute exists. I consider that is a completely unreasonable curtailment of trade union rights. There are several examples of where that provision would impose unreasonable restrictions. In the case of Dunne's Stores there would be a public outcry if a bloody-minded employer, as very well could happen in that particular case, found now that he had the protection of the law and could have recourse to the courts to restrict that picket line to four, five or six employees directly employed by Dunne's Stores. There would be a public outcry in this city if such a legal imposition was acted upon. It would be completely unacceptable. What, for example, would be the case in the kind of dispute we saw a few years ago against McDonald's hamburger joints? In that situation the issue in dispute was effectively the right to join a union. I do not know how McDonald's are going to get on in Moscow, but around the rest of the world they are notorious for their anti-union disposition. In that case unreasonable pressure was mounted on the workforce to dissuade them from joining a trade union of their choice. In fact it amounted to very ugly pressure on occasions. A small number of the workers concerned did proceed however to join the Irish Transport and General Workers' Union as it was then. There is no conceivable way that a dispute could be prosecuted effectively if the picket line was to be confined to the workers of that particular enterprise; it simply would not be possible. Even as it was, where there is, for example, more than one outlet, where it is open for about 16 hours a day, there is no way that a small number of workers could man the picket line except in unreasonable stints. It has been traditional in the trade union movement, for as long as there has been a trade union movement, that colleagues in the trade union movement would show solidarity in that situation and would share the picketing duties. That happened in the case of McDonalds. It happened to no good effect as it turned out but that is not the point. Other trade unionists manned the picket lines with the workers of McDonalds in their fight to effectively have acknowledged a right they have under the Constitution to join the trade union of their choice.

This seems completely unreasonable and unnecessary. Where have the great difficulties been? It is unnecessary to restrict the picketing to employees of the enterprise directly concerned. Why do a couple of celebrated cases in the history of our industrial development have to determine the norm of the kind of industrial relations we are going to have? Everybody can remember the handful of bad experiences we have had, but what about all the hundreds of disputes that have happened and have been resolved quickly and peacefully without difficulty? Why should it be necessary to contemplate such a change as is being suggested here?

What does the Minister propose will now be the situation in terms of tradition in certain industries? It is just part of the industrial landscape that in the building industrial landscape that in the building employer to cause him to employ trade union labour for employment perhaps manned by unemployed building workers. It has been tested, it is perfectly legal, it happens every day — let me not exaggerate, it happens frequently — so is that practice that has become part of industrial relations culture to be outlawed because of this unreasonable restriction? For example, it may be necessary for workers to take such action to ensure that an employer will stay within the terms of an industry-wide agreement, and in such circumstances the picket will of necessity be made up of workers who are not employees of the employer in question. I cannot envisage in the building industry how it will now be possible to prosecute effectively a trade dispute against a contractor or building employer, having regard to the multiplicity of associate companies, subsidiary companies, subcontracting on sites, work at a host of different sites going at the one time and so on. How is it proposed to be within the capacity of a trade union to prosecute peacefully a trade dispute in such circumstances without being able to enlist the support of other trade unionists, former employees, unemployed building workers or whoever? It simply would not be possible, and I do not think it has yet dawned what a restriction this would be. The provisions on picketing here go much further than anything that has been imposed or contemplated by the courts to date.

As the legislation is currently drafted it will be relatively easy for an employer to defeat a strike by forming a new company and transferring the premises being picketed to that new company. Because of the definition of "employer" referred to earlier the new company might not be regarded as an employer capable of being a party to the trade dispute. In any event, surely it follows that the workers would no longer be picketing, according to the Bill, "a place where their employer works or carries on business". What is the position of an employer merely abandoning a business, ceasing to trade temporarily or whatever? I am not plucking all these things out of the air or thinking them up; they are not fantasies. They have all happened. I have experienced personally each of the kind of incidents I am postulating here. I cannot see what is preventing an employer from simply abandoning the business, when the picket could then be stopped by injunction on the basis that the employer no longer carries on business at that premises.

The wording of this section would also prevent the extension of strike across a number of companies who operate as part of the overall group unless the workers could bring themselves within the ambit of section 11 (2), which relates to secondary picketing, by demonstrating that the other companies within the group were assisting the company with whom the dispute arose. I believe section 11 (2) will turn out to be a lawyers' paradise. It provides that: "It shall be lawful for one or more persons acting on their own behalf or on behalf of a trade union in comtemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where an employer who is not party to the trade dispute works or carries on business if, but only if, it is reasonable for those who are so attending to believe at the commencement of their attendance and throughout the continuance of their attendance...". Who is to be arbiter of whether the workers concerned had reason to believe at the commencement of the dispute or the continuation of the dispute that that employer has acted in a way calculated to frustrate the strike or other industrial action by directly assisting their own employer? Sometimes in the nature of things we all know that this is the purpose of the action by the other employer, but some objective yardstick is going to be required by the courts to establish it, and in some cases it can be very difficult to prove. Workers instinctively know that that is what the other employer is trying to do, and when that employer resorts to the courts that it is going to be a very expensive business. Of course it will have the effect of trade unions tip-toeing through the tulips very carefully. Maybe that is the purpose of it and what is behind it, because trade union executives will now have to be very careful indeed about sanctioning disputes and especially about sanctioning disputes in the circumstances envisaged by section 11 (2). The ability to prove in all cases that the second employer is working to frustrate the strike is going to be extremely difficult. The court will clearly demand some reasonable yardstick. We have all heard the classic definition of the reasonable man as being the man on the Clapham omnibus; it can be very difficult and very expensive in a situation like this for the reasonable man to persuade the judge to accept his word but this is the case. It may well be that this matter — and I am not committing myself at this stage — could be dealt with by amending it to read "directly or indirectly assisting or taking any action calculated to undermine the dispute". However, that is something I will come back to on Committee Stage.

Section 11 (3) deals with a situation in the health services. I do not know why they should have been singled out; all reasonable people would agree that disputes in the health services are, at the very least, undesirable. Why should it be necessary to insert a subsection that allows for a situation that

any action taken by an employer in the health services to maintain life-preserving services during a strike or other industrial action shall not constitute action calculated to frustrate the strike or other industrial action for the purposes of subsection (2).

Again, I ask the Minister and his advisers why it was necessary to put in that clause? Trade unions voluntarily agree in all situations in my memory to ensure that essential services are maintained in such a dispute. I look forward to the Minister enlightening me to the contrary, and I wonder why it could not be dealt with under one of the codes of good practice rather than putting in such a clause here? I can see it raising unnecessary problems. For instance, I can see an unreasonable chief executive of a health board or an unreasonable hospital manager using subsection (3) to almost outlaw any given situation. Indeed, it is very easy in the management of the health services to claim that almost any situation that one finds oneself in is life-threatening or necessary to maintain life-preserving services. There have been some examples in my experience that would not give me any reason for complacency that that will not be the case.

Rather than inserting such a clause, may I suggest that the Minister drafts a requirement in such a way that the parties, in the event of such a dispute being contemplated, be required to sit down and negotiate the kind of practice that presumably motivated the subsection and would guarantee the provision of essential services during the course of such a dispute and that the outcome of such negotiations between the parties directly concerned be required to go to the Minister for approval. Where the collective bargaining system is working well, and generally speaking it is working well, the law ought not to intrude unreasonably and the Minister should encourage, with all the means open to him, voluntary agreement between the parties concerned.

As a result of the situation in the health services over recent years the trade unions themselves have initiated discussions about a situation where it could be contemplated that a no-strike clause could be agreed with the employers in the health services precisely because of the motivation presumably behind this subsection. Nobody wants to see a strike in a hospital. There have been disputes which have not exactly been a cup of tea for the trade unions dealing with them but it does presume a number of other things. I think the way this clause is worded invites difficulties.

Section 11 (4) states: "It shall be lawful for a trade union official to accompany any member of his union whom he represents ...". If the term "trade union official" is intended to mean what is normally meant, that is, a full-time employee of a trade union, I think it is completely unnecessary. It is simply not practicable in the world of industrial relations, especially for smaller trade unions, for example who have a great many voluntary officials, to police, administer and run a trade dispute through the use of full-time personnel. I cannot see any reason that the term "trade union official" cannot be broadened to include full-time or part-time voluntary activists acting on behalf of the trade union and not give them the same facilities.

I think I understand why section 13 has been included. It presumably relates to the contemplated High Court action which never actually took place, but had it taken place I have been advised that in certain circumstances the rights conferred would be unconstitutional. In that sense I welcome its inclusion.

If I may, I will deal with the question of the definition of a worker that I referred to earlier, and specifically in relation to section 23. As I have said, there is a difference in the definition of worker in sections 8 and 23. Basically, in 1990 it is proposed to reiterate the old definition of worker as enshrined in section 23 and exclude all of the categories listed from (a) to (f). I wonder if the Minister has given any consideration, seeing that we are engaged in major reform of the industrial relations scene, to querying whether it is not time to make a clean break with the anachronistic paternalism of the conciliation and arbitration schemes of the 1930s. If we are engaged in major industrial relations reform, why should we seek to deliberately exclude up to 400,000 workers from the terms of the Bill? Why, for example, could they not be given the option to avail of the rights conferred by this Bill?

Debate adjourned.