Vol. 398 No. 2
I move amendment No. 1:
In page 6, between lines 32 and 33, to insert the following subsection:
"(2) The provisions of this section shall not apply to any offence committed before the passing of this Act.".
This is a technical amendment. I will not delay the House with it. The Minister may say whether he thinks the additional subsection is necessary. The amendment replicates a similar provision in section 4.
The reason for section 5 is to allow a period of 12 months for taking proceedings for an offence under the Industrial Relations Act——
I am sorry, Minister, the conversation in the lobby is intruding into the Chamber and constitutes disorder. The conversation in the lobby must cease.
The reason for section 5 is to allow a period of 12 months for taking proceedings for an offence under the Industrial Relations Act rather than the six months provided for in the Petty Sessions (Ireland) Act, 1851. It does not make anything an offence which is not an offence before the passing of the Act, so the proposed period of one year will allow more time for the preparation and assessment of cases prior to prosecution. Therefore, I have difficulty in understanding why he would wish to confine the new arrangement to offences committed after the passing of the Act.
I note what the Minister has said and I should like to ask the Chair to put the amendment.
We now move to amendment No. 2 in the name of Deputy Rabbitte. I observe that amendments Nos. 3 and 4 are alternatives and I am suggesting therefore that we discuss amendment No. 2, amendment No. 3 in the name of Deputy Jim Mitchell and amendment No. 4, in the name of Deputy Toddy O'Sullivan, together. Agreed.
I move amendment No. 2:
In page 7, lines 1 and 2, in the definition of "employer", to delete "having previously worked for that person" and substitute "or who acquires an undertaking for which one or more workers work or have worked".
There are two distinct points involved here. The definition of "employer" relates to the final phrase which states, "having previously worked for that person". My amendment proposes that that should be excised. On Second Stage I dwelt at length on why that should be the case and I pointed out how punitive it would be if that definition was enshrined in the eventual Act. The substitute being proposed is the phrase, "or who acquires an undertaking for which one or more workers work or have worked". There are any number of suggested cases one could mention of where it may well be possible to establish that one or more workers, work, worked, or normally worked in the past but the requirement "having previously worked for that person" would seriously limit the possibilities in a trade dispute at any subsequent stage. In addition it entirely rules out circumstances where there has been a transfer of undertaking or where a new business acquires an old business in which a number of workers worked in the past. Under the Minister's definition they are excluded.
It is imperative that workers have the freedom to prosecute a trade dispute in the employment in which they had worked previously or where an entrepreneur buys the business. Under the definition in the Bill those workers would be considered as people who never worked previously for the person who is the new owner although they may have earned their livelihood in that business. It is imperative that the Minister accede to this moderation of the definition.
While I agree with the sentiments expressed by Deputy Rabbitte I wonder if his amendment will have the effect he wishes. While the definition seems to be badly drafted there is a danger that if we accept Deputy Rabbitte's amendment in its present form it might have an adverse effect on certain workers. For instance, it may hinder workers who had been dismissed, or purported to have been dismissed, by the employer who is party to the dispute. That is a danger I see in the Deputy's amendment. The phrase, "or seek to work having previously worked for that person", covers those who might have been dismissed and arising out of that dismissal may be in dispute with the employer.
What is provided for in the Bill is an objective definition of "employer" for the purpose of defining the parties to a trade dispute. An employer must be a legal entity or a person and for this reason the use of the term, "in that employment", as proposed by Deputy Jim Mitchell, would not be appropriate or satisfactory. It is not possible to define "employer" by reference to a particular sector or job. I expect that the amendments being proposed by Deputies O'Sullivan and Rabbitte are aimed at the exceptional circumstances that arose in the 1959 case of Roundabout v. Beirne. What happened in that case was most unusual and has not, to my knowledge, been repeated in any case in the 30 years since. It was clearly used to get around the provisions of the legislation and I doubt if such an attempt would succeed today if it did arise.
The definition of "employer" in the Bill is sufficiently comprehensive and to amend it in the way proposed by Deputies O'Sullivan and Rabbitte would be too far reaching. It would leave the definition much too wide. The circumstances in the Roundabout v. Beirne case were quite exceptional.
I am not sure that what the Minister has included in the Bill is clear enough. I acknowledge that there are some difficulties in accepting what Deputy Rabbitte has proposed but I have no doubt that the House is united in trying to cover adequately the rights of workers. We should consider this matter between now and Report Stage. It is my view that to include the phrase "in that employment" would be a correct addition to the section. On reflection it might have been better if we deleted "for that person" and inserted "in that employment" after the word "work". There is a problem in regard to a change of ownership of a concern. The rights of workers have to be protected regardless of the ownership of a concern. One employer selling a company cannot sell away the rights of the workers. I should like to give notice that on Report Stage I intend introducing an amendment to give greater clarity to the meaning of the word "employer".
I am pleased to be able to contribute to this debate on Committee Stage because I was unable to participate on Second Stage. We are dealing with a comprehensive Bill and the definitions are an essential requirement of it. It is essential that they should be clear, unambiguous and explicit. It does not augur well for Committee Stage if the Minister offers an opinion that he does not think it is likely that a person might attempt to get around the definition of "employer" because since the Roundabout v. Beirne case in 1959 a similar case has not arisen.
Having regard to the gestation period of this legislation which goes back to the former Deputy Gene Fitzgerald, who is now a member of the European Parliament for the Minister constituency, when he initiated attempted industrial relations reform in 1977, it is quite clear that we are not likely to be here again debating constructive legislation unless we get this one wrong. For that reason, we will have to go through this Bill with a fine tooth comb.
The Minister is experienced in industrial relations and he expressed the view that someone may wish to evade their responsibilities in law by virtue of being an employer, by disposing or transferring their interest which is, in effect, the intent of Deputy Toddy O'Sullivan's amendment. The Minister will be familiar with the origins of this recommendation, it clearly comes from the Irish Congress of Trade Unions with whom — as recently as today — there have been discussions between officials of his Department and representatives of Congress.
The ingenuity or capacity of employers since 1959 to frustrate the legal requirements of the State as evidenced in the foods and meat industry alone has not diminished. We are talking at all times about the worst cases — we must provide for the most extreme and abusive cases — because we only need one to frustrate the rights of a worker in a particular enterprise. It is quite possible, in an enterprise in dispute, where the employer is incapable or refuses to negotiate through the normal machinery of industrial relations to resolve a problem, that that person could possibly sell their enterprise to a second party and that the second party would be benefically related in some secret manner — perhaps in a contract registered outside this State. There has been evidence of that in relation to some of the meat companies which the Minister's colleague, Deputy O'Malley, is trying to unravel and the protection which this law purports to give the workers vis-à-vis their rights in relation to employers could, as I interpret it, be negatived.
The Minister referred to Roundabout Limited v. Beirne in 1959 but he did not explicitly state whether, under the definition of “employer” as set out in his Bill to which he does not propose to offer an amendment despite the fact that he has tabled amendments in relation to the definition of “worker” under our law, a similar action — Roundabout Limited v. Beirne, mark 2 — would have the same effect. If he can show that it will not have the same effect then perhaps we might be able to accept his assurances. If he cannot we have no choice but to include the extension of the definition to provide for the amendment in the name of Deputy Toddy O'Sullivan.
Deputy Quinn is correct in his observation that there were further meetings and it is in the spirit of this legislation that we have tried to listen to the views of all concerned because it is an important Bill. The definition is comprehensive and it was discussed at great length. The second employer would still be an employer in the case mentioned by Deputies Mitchell and Quinn if he had employees. The definition is only for the purpose of defining the parties to a trade dispute. I referred to the Roundabout Limited v. Beirne case because a particular decision was made in it. However, as I said, I am happy that the definition is comprehensive although I note that Deputy Mitchell intends to table an amendment in this regard.
I am anxious, especially at this stage of the Bill, to move forward as quickly as possible. However, Deputy Quinn's remarks are central to this, we cannot enact legislation if the definitions are deficient. It is not merely the Roundabout Limited v. Beirne case which causes me disquiet. The Minister might well be right if it was only the case that the owner of the pub circumvented the legislation of the day by taking a lease. If that were so we could take the risk involved but I am speaking as somebody who, until very recently, was a trade union official and my responsibilities included the entire contract area. In the contract area the definition here leaves us open to inflicting considerable injustice on contract workers.
During my Second Stage contribution I instanced the case of the dispute in relation to contract cleaners at University College, Dublin, where what has become the norm in industry happened. An employer came in from outside and undercut the person providing the contract for cleaning services to UCD and refused to employ the workers in place. It is a norm the trade union have tried to follow, that in circumstances like contract catering, contract cleaning and contract security — a phenomenon which is becoming more common — the workers should be kept in place. If the law of the marketplace means that another employer comes in and undercuts the employer inside that is fine as long as he retains the trade unionists whose work it was. We could, under the 1906 Act, prosecute a trade dispute for employment in that situation. We cannot do that under the definition which the Minister is trying to enshrine here, the women in that dispute, for example, could not show that they were trying to work having previously worked for that person. They never worked for the new employer, they worked at UCD, they did that work but they never worked for the new employer. There are a myriad of situations like that around the country at present and I would be doing a considerable injustice to the people concerned if I accepted a definition of "employer" which is loaded in favour of that kind of employer.
The Minister should not refuse to accede to this request because, in many cases, these are fly-by-night operators who are undercutting good employers paying the agreed terms under joint labour committees or whatever. They are being undercut by this type of employer and we are facilitating a rash of that kind of exercise.
The definition of "employer" has been drawn up in a broad way and it clarifies that former, seasonal and casual workers would be within its scope. This reflects current case law. I accept that the Deputy knows of cases other than the 1959 case which, as I said, is regularly quoted. The decision in that case was at variance with normal practice. I was not saying that this would be our only concern but that one case should not influence the matter.
I believe the definition is comprehensive enough as it stands. I do not have a closed mind on this issue and perhaps we can look at it on Report Stage. I want to get this Bill right. I accept the concern expressed by the spokespersons from all parties, and I will consider what they have said, between now and Report Stage, but I believe the definition is comprehensive enough.
The Minister's offer to look at this definition again is not acceptable to me. This argument has been well and truly thrashed out and it is not as if we were debating it for the first time. The Minister will be aware, from wearing various hats, that the increase in contract employment within the State sector in the very area to which Deputy Rabbitte referred is on the increase and is frequently at the behest of the Department of Finance.
I believe we are down to the net point at this stage. The Minister has not offered any precise or concise criticism of the wording in the amendment. If he has a legal drafting technical problem with the wording in the amendment he should tell us what it is. It is a bit late in the day for him to say that he is prepared, in principle, to look at the general question again. The Minister has been more than well briefed about the general argument being put forward by Deputy Rabbitte and me. Unless the Minister gives a clear undertaking that he will formally amend the definition of "employer" to provide for people buying an enterprise in the manner described by Deputy Rabbitte and bring forward his own wording on Report Stage, I will have no option but to press this amendment to a vote.
I concur with what Deputy Quinn has said. This definition is deficient and needs to be amended. Not alone is it deficient in the way Deputy Quinn has said but the phrase "having previously worked for that person" will be open to very wide interpretation. Will an employee who has worked for a person in one company also be able to place a picket or engage in a dispute involving another company which is totally unconnected with that company except for the fact that it is owned or partially owned by the same employer? The definition of "employer" is far too loose. In committing ourselves to bringing forward any new definitions on Report Stage we need to be clear on which points we want to cover.
First, we want to cover a situation where there is a change of ownership in employment to ensure that any change of ownership will not in the least change the rights and prerogatives of an employee in the enterprise which is the subject of the change of ownership. Second, I do not think the House would want to extend the right of picketing in trade disputes by employees to other employments, companies or businesses owned by the same company but not otherwise directly connected with it. This would be a major opening up of the potential danger of secondary picketing.
We need a new definition of "employer". The Minister should give a commitment to bring forward an amendment on Report Stage — we on this side of the House can propose our own amendments, which I intend to do — which meets the points now being made about the definition of "employer".
In reply to Deputy Quinn, the definition has been looked at and I believe it is comprehensive enough. What I was trying to do was to get a definition of employer which did not cover a number of other substantive issues. It is an objective definition of "employer" for the purposes of defining the parties in a dispute. As I said, an employer must be a legal entity or a person and for this reason the use of the term "in that employment" would not be relevant. I believe the present definition is comprehensive enough.
With regard to the point raised by Deputy Rabbitte about the contract worker, under the Bill both contractors would be regarded as employers in the circumstances he outlined. As both contractors would have employees they would be covered by the Bill. A trade dispute does not have to be with your employer; other workers could also be involved. This definition has been debated and looked at but that is not to say it could not be improved by way of an appropriate amendment on Report Stage. There has been much debate on this issue outside the House. I accept the points made by the Deputies but I still believe this definition is comprehensive enough.
Is the Minister satisfied that this definition covers the situation where a change of ownership takes place?
I think I answered that question in my previous reply; I am satisfied that it does if both employers employ workers.
Does the Minister not agree that the phrase "worked for that person" could be open to adverse construction in many respects and needs to be clarified?
It means you have to be employed by the person. It cannot be left so open that anyone could be covered; a person would, in effect, have to be employed by the employer.
I do not want to repeat myself ad nauseam, but would the Minister not agree that the term “worked for that person” could be open to two directly opposite constructions? On the one hand a dispute with a person could cease once he ceased to own the company but on the other hand an employee engaged in a dispute with a person in a particular company could extend the dispute to other businesses in which that person is involved. Does the Minister not see the dual danger in that definition?
The phrase "having previously worked for that person" is tied to the term "seek to work" and does not cover the other part of the definition. Therefore, it is tied into the last part of the definition.
That is my understanding of it as well which is why I raised this point. I do not know why the Minister would wish to provoke us into having to take up 15 minutes voting on this. That is not the spirit in which we are approaching this Bill. But, if you divide it, that is the way I see it as well, so that the second part of the definition would read: "or to seek work having previously worked for that person". How could one possibly have a trade dispute against an employer when one is seeking to work, when one did not work for that employer previously or, as it reads here: "having previously worked for that person"?
Take the traditional position on a building site, for example: how could one seek to work on the Tallaght Town Centre complex for, say, John Sisk in the traditional way when it is required here that one must be able to show that one previously worked for that employer?
Whatever about an argument about the second part of my amendment with regard to the transfer of undertakings, surely it ought cost the Minister no pain to excise the phrase "having previously worked for that person."
Perhaps I might seek clarification on that point. I am absolutely ad idem with Deputy Rabbitte on his objective but it might have unintended consequences. Would he agree? Take the case of somebody dismissed or purported to have been dismissed. My reading of the phrase “having previously worked” is that it is intended to cover people in that position. Indeed that dismissal may be the very point in dispute. Does the Deputy not see that?
I see the point Deputy Mitchell is making but I do not agree with it. It is just as likely to operate the other way round — that the person dismissed would be far more likely to prosecute a dispute against the old employer than against the new one. I do not think it is a major point but perhaps I am missing its essence.
It is not substantive and is a definition. It is broad, seeking to explain the point about contractors — once they have employees or to go further, as Deputy Mitchell was demonstrating, even if they did not have employees now but had formerly they would also be covered by this definition which is broad and comprehensive.
How stands amendment No. 2 in the name of Deputy Rabbitte?
I will have to press the amendment.
We now come to amendment No. 5 in the name of Deputy Jim Mitchell. I observe that amendment No. 6 is related. I suggest therefore that we discuss amendments Nos. 5 and 6 together.
I move amendment No. 5:
In page 7, line 4, in the definition of "trade dispute", before "connected" to insert "directly".
There are many areas in this Bill where there is what I consider to be loose drafting. I think my amendment would give greater clarity to the Bill in regard to the definition of "trade dispute".
My second amendment is to substitute the word "worker", which I feel is a more precise word, for the word "person".
I have to say that it is difficult to be thoroughly prepared for a Committee Stage debate when the amendments in the name of the Minister were only circulated late last night. When I sought them at 9.30 they were still not available. The amendments of The Workers' Party and The Labour Party were only circulated after tea yesterday also. This, in a sense, detracts from what should be the careful consideration on Committee Stage of the precise wording of each definition.
I hope anyway that the Minister will accept my two amendments, otherwise the definition could be open to loose interpretation in the future and have the reverse effect to what is intended in this legislation.
I do not feel very enthusiastic about this amendment. I would like to take this opportunity to remark that in discussing the definition of trade disputes we have all steered away from this old inclusion in the 1906 Act of worker and worker disputes. We have done that because it is not fashionable to even countenance such disputes. I have, however, the most serious apprehension about having excised that term because I believe it is likely to become more the case that an employer will be able to construe a dispute as worker against worker in the context of advancing technology, deskilling of trades and so on. I instance the case of journalists and printers as a very good example of where this kind of conflct will inevitably arise and where employers would be able to say that a dispute has nothing to do with them but is between two different categories of worker, in this case, the NGA and the NUJ. I regret my lack of guts in not putting forward an amendment on it but there is a great danger that it could be misconstrued as an indication that one somehow supports the kind of crazy demarcation disputes we had in the sixties and early seventies. Quite frankly, I think that is a chapter of industrial history that is behind us. There is a calm awareness on the part of most workers and most unions that that page of history is closed. We now have to confront the question of technology and I think the definition is the weaker for the excision of that particular phrase.
Before I deal with the two amendments put down by Deputy Mitchell and reply to the general point made by Deputy Rabbitte let me say a little about section 8. This re-enacts the definition of trade disputes contained in the Act of 1906 but excluding worker versus worker disputes. The advantage of this definition of trade disputes is that it is a longstanding and familiar definition. Any new definition would be likely to be the subject of legal disputes in particular cases as immunities in relation to picketing and organising a strike are granted in contemplation or furtherance of a trade dispute. Among the issues which the Irish courts have accepted as valid subjects for a trade dispute are wages and other conditions of employment, working conditions, redundancy disputes, improvement of statutory rights and trade union recognition.
In regard to worker versus worker disputes there is little justification for permitting two or more unions to carry on a dispute with each other at the expense of an employer who employs members of the unions concerned but who is otherwise unconnected with the dispute and powerless to resolve it. While it is true that worker versus worker disputes are small in number, such disputes can be very intractable and can have detrimental effects on employment normally out of all proportion to the numbers involved. It has to be acknowledged, however, that some worker versus worker disputes contain worker versus employer elements, which I think is what Deputy Rabbitte is saying and may continue to enjoy immunity on that count. That is an important point.
With regard to the amendment, the legal advice is that the inclusion of the word "directly" is not necessary and could indeed give rise to legal difficulties and unnecessary complications. The key point is that the dispute must be between employers and workers but the matter in dispute may relate to persons who are not workers, for example, workers could have a dispute with an employer over a proposal to engage outside contractors, who would not be workers as defined in this Bill. It is therefore necessary to retain the word "person" to cover this type of situation.
For the benefit of the House would the Minister clarify the probable implications of the decision to exclude the workman versus workman or worker versus worker definition as coming within the umbrella of a trade dispute? If we continue the analogy instanced by Deputy Rabbitte, a print company may find itself in a situation where the print union and the journalists' union are in dispute over the consequences of new technology being introduced by the employer in the first instance. Is the Minister saying that, following the enactment of this provision as it stands, such a dispute which would lead to an industrial stopage, among other things, such as the failure of the Irish Press to be published on a particular day, the new majority shareholders of that company would be able to take legal action against one or both of the two unions for commercial damages? Is that the consequence of this exclusion?
It is a matter of interpretation in any case. If it is an inter-union dispute, the answer is yes, that immunities would be removed.
Obviously each case will have to be looked at on its merits. The reason I am citing this example is that we are all familiar with the case referred to by Deputy Rabbitte; and it is a case that we can relate to and it is not so hypothetical. For example, if the new owners of the Irish Press make a formal declaration to the journalists of that paper that they must comply with new technology and co-operate with direct feed in a manner that works in other papers — and it certainly works in the company's newspaper in the United States — which results in severe job losses on the printing side and which provokes a response from the NGA who are attempting to protect their employment, if this leads to a dispute between the two unions, is the Minister saying — and this is a very concrete example — that neither the NUJ nor the NGA will have the protection of this Bill when enacted against claims for commercial damages? The Sunday Press has a circulation of 400,000-odd and the reserves of the NUJ or NGA would be depleted if they were open to a claim for commercial damages. Is that a consequence of this definition?
It is clear from the details of the case outlined by the Deputy that there is an employer element in this dispute. If the dispute sets out as a worker versus worker dispute and then turns out to be a worker versus employer dispute, then the unions would retain immunity. Where it is a worker versus worker dispute and there is no involvement by the employer and the employer is sidelined and suffering, they lose their immunity. This would not apply in a case similar to what the Deputy has outlined.
Let us tease this out because we may not get the opportunity to discuss this matter again. For argument sake let us consider a specific instance — I am using a specific instance hypothetically in order to put meat on the argument but I am not in any way implying that this is what the situation is in that enterprise. The new proprietors in paper X wish to reduce the costs of production. The journalists, represented by their union, come to an agreement as to how they will perform their duties as journalists using new technology and this enables new printing machinery to feed directly from the keyboard right through to the printed page of the newspaper which then goes through the distribution network. The traditional job of the printers, represented by the NGA, has now effectively been by-passed. The journalists who have agreed to this are not in dispute with the employer. Let us assume for the purpose of teasing out this example that the printers represented by their union take action against the journalists by either frustrating what they do or by frustrating the distribution of the printed product, the newspaper. Could this be construed as a worker versus worker dispute? If the employer was to say that he was not in dispute with anybody — he has got an agreement with the journalists and he does not need the printers.
I raised this point initially because I have regrets about not having the courage of my convictions to table an amendment on it. I think the Minister should look at this point on Report Stage. It is all very well to say that immunities would only be removed in a dispute where it was expressly a worker versus worker dispute but where there was an element of employer involvement, immunities would apply. The impact of technology has implications for deskilling workers not only in the print industry but also, to a major extent, in the craft sector, and is likely to lead to a situation where union is set against union. The employer may make a considerable investment to install the new technology and then leave the union or the individual workers to fight out among themselves who does what job. This will be very unclear and we may have to resort to the courts to clarify whether it is a worker versus worker dispute or there is an element of complicity by the employer. This is an unfortunate situation. Having listened to the Minister's summing up on Second Stage, I find an element in the legislation — perhaps because it was so long in gestation, which is haunted by the experience in the sixties. Industrial relations have changed beyond recognition since then. I do not think the worker versus worker dispute, which we would all deplore, has been a phenomenon in my experience over the past decade and more. In the situation where the phenomenon of technological advance will accelerate it is probably a pity that we should restrict the definition.
The discussion on this definition of "trade dispute" has been greatly expanded beyond the amendments in my name. The points being made by Deputies Quinn and Rabbitte on worker versus worker disputes or disputes where there is a significant worker versus worker dimension indicate one of the great weaknesses of the Bill. When we come to consider some other amendments in my name I hope the House will take that into account.
For some time we have not had problems in worker versus worker disputes, where all the unions concerned are unions of Congress. This is due to the very respected procedures within Congress. The problem arises, and has arisen in the past, including the recent past to some extent, where there are several unions in the workplace but one is not within Congress. There was a dispute in the past few weeks in one of the bus depots in Dublin involving the NBU. While that dispute was of a disciplinary nature involving a member of the NBU and was ostensibly between the NBU and Dublin Bus, in reality a very major secondary question arises as to the relative position of the unions in Dublin Bus and their relative strength. To some extent there was a worker versus worker dimension there.
The fundamental weakness of this Bill is that it does not make provision for questions of that nature. These are the very matters that have haunted industrial relations over the past ten to 15 years and, in my opinion, will arise in the future when expectations rise with economic recovery. The definition of a trade dispute here allows us an opportunity to reflect more fully on those facts.
To get back to the amendments in my name, it seems that the definitions here are loosely drafted. We have already had this discussion on the definition of employer and I have no doubt we will have it again on Report Stage in view of the Minister's surprising lack of openness to suggestion on it. The definition of a "trade dispute" is not quite as loose as the definition of "worker" but I think it would be greatly helped by the addition of the word "directly" and the substitution of the word "worker", for "person". The next definition in this section is that of "worker", "person" is not defined anywhere.
I welcome the fact that this matter has been raised. As Deputy Rabbitte has said, we do not want to be haunted by the experiences and structures of the sixties. This Bill should aim to meet the challenges of the nineties. The point was well made by Deputies Rabbitte and Quinn regarding the overwhelming changes that will take place either with the complicity of the employer or through technology. Different unions representing different groups of workers may have to take a stand against one another. One area that comes to mind immediately, apart from the crafts area mentioned by Deputy Rabbitte, is the clothing industry. I was reminded of the fact that pattern cutting and designing is now done by computer while cutting is done by laser. Large numbers of jobs in a traditional industry are being wiped out in an area where different traditional crafts and skills were used. This Bill must address those problems rather than the problems the trade unions have overcome in the last 20 years. We should remember that the projection of work for 1999 is that manufacturing industry will have decreased to 8 per cent of productivity. We need a Bill that will take into consideration the negotiating and industrial skills that will be needed to cope with that kind of change. I support what has been said here and hope that when we come to Report Stage these matters will have been taken into consideration.
I agree with those speakers who have said that industrial relations have changed dramatically since the sixties and seventies. Nonetheless, given the multiplicity of unions and the structures that exist, it would be unrealistic to feel that we will not continue to have some inter-union, and therefore inter-worker disputes in respect of membership and demarcation. There are examples I can give from my experience as an arbiter over the years of union versus union or worker versus worker disputes. I recall one in particular that cost £5 million: admittedly, it was in the sixties. Where it is a clear cut case of worker versus worker dispute, the immunities will be removed under the Bill. One advantage in these circumstances is that where the unions concerned are within Congress the removal of the immunity should enhance the opportunity of congress to settle the dispute. Congress machinery has been very effective and most disputes are solved at that level. The absence of the immunity will bend the minds of the disputing parties all the more to reach a settlement.
The point about technology is well taken. There is, from time to time, an employer dimension. New grades and new types of work emerge with changing technology. It seems that an employer looking ahead, and leaving aside the worker versus worker dimension, should engage in genuine consultation before these changes take place and that might remove clashes in the future. In other words, the workers should be involved in consultation and discussion with the employers about the introduction of new technology, if only to win the worker co-operation as we face increasingly competitive times, and to identify the common ground between the two sides in terms of the implementation of technology. Where the dispute is worker versus worker, the immunity should be removed but where there is an employer dimension we are into the interpretation area.
I will repeat one point in answer to Deputy Mitchell. The definition re-enacts the definition of "trade dispute" contained in the 1906 Act but excludes the worker versus worker disputes. The advantage of the definition of "trade dispute" is that it is a long standing and familiar definition. Any new definition would be likely to be the subject of a legal dispute in particular cases as immunities in relation to picketing and organising a strike are granted in contemplation of the furtherance of a trade dispute.
On Deputy Mitchell's amendments, the legal advice is that the inclusion of the word "directly" is not necessary and indeed could give rise to legal difficulties and unnecessary complications. The dispute must be between employers and workers but the subject matter of the dispute might relate to persons who are not workers — for example, workers could have a dispute with an employer over a proposal to engage outside contractors who would not be workers as defined in the Bill. It is necessary to retain the word "person" to cover this type of situation.
Amendments Nos. 8 and 35 are alternatives to amendment No. 7. Amendment No. 33 is related and amendment No. 34 is consequential on amendment No. 33. Therefore, amendments Nos. 7, 8, 33, 34 and 35 may be taken together, by agreement.
I move amendment No. 7:
In page 7, between lines 7 and 8, to insert the following definition:
" `trade union official' means a person in the employment of a trade union or a person authorised in writing by a trade union to act for it for a purpose or purposes specified in the authorisation;".
This amendment deals with the definition of trade union official. It is very clear from my amendment and from Deputy Rabbitte's amendment No. 8 that we want to clarify that in this case a "trade union official" does not just mean an officer in the employment of a trade union but also shop stewards, branch committee members etc. who, although not employees of the union in the sense that they are not paid by the union are acting for the union in a particular dispute. Deputy Rabbitte's amendment No. 8 reads:
In page 7, between lines 7 and 8, to insert the following definition:
" `trade union official' means any person in the employment of a trade union or any person appointed by a trade union to so act under the rules of that trade union;".
I have no difficulty with Deputy Rabbittee's amendment. I hope the Minister will see his way to accepting either that amendment or my amendment or, perhaps, a combination of both on Report Stage.
I broadly agree with the remarks of Deputy Mitchell. In looking at amendment No. 35 I think it would take up time unnecessarily to give a long explanation of the motivation behind my own amendment which is relevant in the case of section 11. I would be happy to accept the Minister's amendment.
I take the points made by the Deputies which they made also on Second Stage. I undertook at that stage to give further consideration to the term "trade union official". I feel the best way to clear up any misunderstanding as to who is covered by the term is by way of a definition, inserting a new subsection. The definition should be confined to paid officials of a trade union or any officer of a union or branch of a union elected or appointed in accordance with the rules of a union. The other definitions are too wide. For the purposes of this section the new subsection reads as follows:
"(5) For the purposes of this section `trade union official' means any paid official of a trade union or any officer of a union or branch of a union elected or appointed in accordance with the rules of a union.".
This covers the point raised on Second Stage.
There is broad agreement here. I understand the reason for the Minister trying to confine the "trade union official" definition to the operation of section 11. From the point of view of proper law making we are talking about a definition and it is rather untidy to have a definition confined exclusively for the purposes of this section. We are talking about a law that will have to travel safely into the next century in which the role of trade unions, trade union officials and members of trade unions has to be given space to evolve. Section 11 deals with the question of picketing. If we are to try to curtail those people who can assist in the picketing process, members of a union, we maybe unnecessarily spancelling ourselves. In support of either of the two amendments and in support of what the Minister is trying to do perhaps he could see his way to bringing forward his amendment No. 35 to the definition stage and excluding it for the purposes of this section. It may well be that it would be useful for the purposes of industrial relations to have the words "trade union official" as including somebody appointed in accordance with the rules of that union. If that definition were included in the definitions section it would be less restrictive.
The only area where this issue arises is in section 11. I intend putting that definition in section 11.
While we take the Minister's word the problem about receiving his amendment so late is that we did not have time to consider the implications. I support what Deputy Quinn has said, that it would be much better and much clearer if the Minister's definition was brought forward to the definitions section rather than have it confined to section 11 only. It is possible — even though we did not have time to consider it — that as this Bill when enacted will amend other industrial relations Acts——
Exactly.
——it could be construed later that the Oireachtas intended this definition only to apply to section 11 and not to the Acts so amended by this Act. I would accept the Minister's form of words or those of Deputy Rabbitte or my own. If the Minister agrees that it should be inserted in the definitions section he could bring forward the amendment on Report Stage.
In this Bill the definition relates only to section 11. From the point of view of being tidy it does not arise anywhere else. It is part of and is related to section 11. The trade unions wanted it to be clear for their own purposes that if the issue arises it is an argument arising out of section 11. By putting it in at the definitions section it would defeat the purpose. It is intended for the protection and clarification of the trade union under section 11; if it were put elsewhere it would not serve the purpose.
I am puzzled by the Minister. Section 11 deals with picketing. Picketing has to do with strikes, industrial action and workers. In the definitions section, section 8, we are dealing with "trade disputes" definition, the definition of "worker", the definition of "industrial action" and the definition of "strike". Why not define "trade union official" in this section? I suspect there could be implications if we do not include the definition of "trade union official" in this section. I would ask the Minister to accept that this is the place where that definition should be put. This part of the Bill is headed Trade Union Law. This is the definitions section of that part of the Bill. I consider that Deputy Quinn's point is correct, that this is where the definition should be.
All the other definitions arise throughout the Act but "trade union official" arises in section 11. The desire of trade union officials was that in future anyone or the courts primarily reading section 11 would be quite clear as to whom "trade union official" related. It is not an issue on which I would argue all day. The requests were that section 11 should be made clear and that the definition of "trade union official" would be part of section 11. That is what the various groups and deputations asked for on Second Stage. There was a particular request that it would be contained in section 11.
May I take it then that the only instance in which a trade union official is defined is for the purposes of this section only? Surely that is identifying it much too closely with only one section. Could it not be argued then that that definition of "trade union official" could not or would not obtain for any other section of that Bill or any other industrial Bill?
It is not an issue I want to argue about——
Would the Minister agree to put it in?
——but the request by ICTU and others and by people in this House on Second Stage was that in the interest of clarity the definition should be in section 11.
I was not a party to the Second Stage debate and the ICTU are not as yet elected to this House.
They had many Members speaking for them on Second Stage of the Bill.
Unfortunately, the courts of the land will not cite private discussions between any Minister for Labour and representatives of Congress but rather the deliberations of this House. While it is essential to have comprehensive discussions with the social partners in the formulation of this law, it is very necessary for us to realise that this House at the end of the day carries full responsibility. All of us who have some knowledge and experience of industrial relations are of the view that the less room we leave for the courts to intervene and to provide interpretations which could not concur with what was the political thinking of the time, the better. In this format here, which is non-adversarial in contrast to a dispute where an employer or a worker could take somebody to court or invoke the court, you get a different kind of interpretation and different motivation.
As Deputy Mitchell said, we have an opportunity in the definition section to define what a trade union official is for the purpose of law, not just in respect of this legislation but in respect of all labour relations legislation of which this will just be one Bill, albeit perhaps the most important Bill. I invite the Minister to come back on Report Stage on this. If we, the elected representatives of the people, define what we mean by "trade union official" it will ensure for ever more that no court will muse about it and decide what it is. Let us decide that ourselves, let us keep our business of the Oireachtas to ourselves and let the Supreme Court and others interpret what we have enacted. Where we are clear that we want to define something and see the merits of it, then it should be defined. It is not a big issue.
There is no particular net point at present to which it is relevant other than the picketing provisions in section 11, but who is to know what will arise at some stage in future? We have already the very topical example of the Extradition Acts where precise definitions would have avoided the situation that has arisen in the courts where the courts had to decide what was perhaps in our mind. Let us put what is in our mind on to the Statute Book and leave aside the ambiguity and all the rest of it that comes from it. It is a general point rather than specific. Are we not taking amendment No. 35 as well?
Yes, amendment No. 35. I will repeat for you that amendments Nos. 8 and 35 are alternatives and amendment No. 33 is related. Amendment No. 34 is consequential on amendment No. 33, so we are taking amendments Nos. 7, 8, 33, 34 and 35 together.
I have made the first point, which is a broad, philosophical one. I am not going to labour it — no pun intended. The definition section is at the commencement of the Bill and if it arises relevant to only one section that is a secondary consideration. Definitions in one piece of legislation frequently are referred to and used in other pieces of legislation.
Amendment No. 35 put in by the Minister I think covers most of the concerns people would have in relation to section 11 generally, but I would like clarification. The amendment reads, "... `trade union official' means any paid official of a trade union or any officer of a union or branch of a union elected or appointed in accordance with the rules of a union.". This seems to exclude the possibility of other members of a union giving support by way of picketing lawfully to their co-trade unionists unless those other members of a trade union are paid officials or officers of a union. With increasing union amalgamation, which we hope to see in the next number of years, the numbers of people who are not officers of unions is going to increase, relatively speaking. Therefore, consider the interpretation as distinct from the interpretation proposed by Deputy Rabbitte and Deputy Mitchell. Deputy Rabbitte's amendment No. 8 refers to "... or any person appointed by a trade union to so act under the rules of that trade union;". The Minister's amendment is confining it to paid officials or branch officers in terms of the definition.
Amendments Nos. 33 and 34 propose the inclusion of any official or person appointed. That gives a flexibility to a trade union if they decide in respect of something that they will take the assistance of other members of a union who might not necessarily be branch officers. We are into a particularly sensitive area that is subject to a great deal of litigation and has been so in the past. There will be test cases of all the sections of this Bill. The provisions in relation to picketing will undoubtedly be tested in the courts sooner rather than later in order to establish bench marks in terms of interpretation and if it is found there are people on the picket line who are neither branch officers nor of the union proper, then they could be construed to be acting outside the law.
I have made two points. The first is a general one, which the Minister can reflect upon, about the location of the definition. The more immediate point seems to be, taking the worst possible situation into consideration as we have to do, that in the area of picketing we have to anticipate some degree of litigation in the short term. Frequently in the nature of things the Minister talks to only officials of trade unions, but it is the ordinary members of trade unions who go on strike and who support each other in terms of strikes. On my interpretation the Minister's amendment No. 35 does not extend the intended protection to them unless they are officers of the branch or of the union itself.
Section 2 (2) provides: "Part II of this Act and the Trade Union Acts, 1871 to 1982, may be cited together as the Trade Union Acts 1871 to 1989, and shall be construed together as one Act." Because of the lateness of the Minister's amendment I have not had time to consult those Acts to see if elsewhere in them there is a reference to "trade union official", but I am sure that somewhere amid all those Acts there is such reference. It would be invidious for us to accept the Minister's amendment here without having that opportunity. We see the heading "Fifth Schedule" and after it the Acts referred to or amended by this Bill are listed, including the Anti-Discrimination (Pay) Act, 1974, the Civil Service Commissioners Act, 1956 and so on down to the Unfair Dismissals Act, 1977. It is much better that we insert the definition of "trade union official" in the definition section.
Secondly, the Minister's amendment might be on Report Stage expanded a little to include a person authorised in writing or appointed by the trade union. The point Deputy Quinn made is valid. We are restricting it considerably if we confine the union to paid officials or elected officers in a particular case.
This definition may affect not only past legislation, it may affect future legislation, so I hope the Minister will accept that this is the point to insert the definition.
A number of points were referred to. I was endeavouring on this issue to be helpful. I was accused earlier of being unhelpful but when I try to be helpful the Deputies opposite argue that the amendment should be incorporated in a different section.
I am surprised at the lack of openness about this.
If I am open about it the Deputy will want me to move around. During the long Second Stage debate Members stood up and declared their allegiance to certain sectors. Their views were taken into account. I should like to make it clear that there is no definition of a trade union official in any legislation. I will be the first Minister for Labour broad-minded enough to define a trade union official in legislation.
Is there a reference anywhere?
No.
That is extraordinary.
I agree. I am trying to deal with the points raised by Deputies Rabbitte and Mitchell during the course of the Second Stage debate by inserting this subsection. It is deemed extremely important that the subsection be included in section 11. It may not make any difference if there is a reference in the definition section to section 11. I will consider between now and Report Stage where the subsection should go. I agree that the subsection is by its nature restrictive and how tight it should be is another matter. Deputy Quinn made a good point when he said that in 20 years time we may have four or ten trade unions and that as a result the provision will be too tight. I undertake to have a look at this matter between now and Report Stage. If the provision stands the passage of time, which I hope it does, the point raised by Deputy Quinn is a fair one.
I accept the Minister's commitment to consider this matter between now and Report Stage. I note that he did not say he will definitely bring forward an amendment but it is my hope he will take on board the points made by this side of the House.
We now move to amendment No. 9 in the names of the Minister, Deputies O'Sullivan and Rabbitte. Amendment No. 10 is an alternative and amendments Nos. 11 and 12 are consequential on No. 10. We will debate amendments Nos. 9, 10, 11 and 12 together by agreement.
I move amendment No. 9:
In page 7, lines 11 and 12, in the definition of "worker", to delete "or a person who under a contract for services personally does work or provides services for another".
I accept the Minister's view on this. The law is adequate as it stands. I have referred to this section as the milkman's section. This concerns a growing phenomenon. We are all aware of a milk distribution company who disemployed 700 or 800 workers and re-employed them as contractors. They would not be covered under the Bill. I should like to thank the Minister for acceding to the points we made on Second Stage in regard to this.
I concur with those remarks.
I do not have any difficulty in accepting the amendment in the names of the Minister, Deputies O'Sullivan and Rabbitte. All sides of the House recognise that there is a problem in that many employers are resorting to employment by contract or on a consultancy basis. However, there is a danger that we will throw the baby out with the bath water. We must have available the possibility of having work done by contract or on a consultancy basis. Many employers, such as those employing milkmen, offer redundancy money to employees and re-employ them on a contract basis. That is one way of getting out from under all the requirements of social legislation whether we are talking about unfair dismissal, terms and conditions of employment and so on. It opens up loopholes for evading taxes, social insurance contributions and so on. A Bill, tabled by The Workers' Party, which addresses the question of part-time workers, is before the House at present. While I do not agree with every detail of that Bill it at least addresses another aspect of the problem that is before us now. Many business people are resorting to what are effectively ruses to deprive workers of their rights such as their social insurance rights, their rights under the Unfair Dismissals Act, their pension rights or in regard to their terms and conditions of employment.
My amendment, which is an alternative to amendment No. 9, seeks to plug the loophole. If we accept the Minister's amendment, and I will happily do so if he presses it, there is a danger that we may make it difficult for people to have work done on a contract or consultancy basis when that is the only way such work can be done. The Minister should consider whether my alternative amendment is more comprehensive. He should take into account later amendments which define "contractor" and "consultant."
The words which are being deleted were added to the present definition of "worker" contained in the Trade Disputes (Amendment) Act 1982 in order to exclude self employed persons from the scope of the legislation. I accepted the points that were made to me strongly on Second Stage, that the wording of the Bill would also exclude various categories of workers it was not intended to exclude. As Deputies have said, that is an important issue given the changes that are taking place. Many people who would formerly have been employed under normal contracts of employment are now being employed on various other types of contracts. We have had a number of opportunities recently to debate the types of contracts and the difficulties that arise from them.
The House is debating The Workers' Party Bill on part-time workers and the Government are taking account of the excellent contributions that have been made on it and are aware of the knowledge Deputies have of what is happening in the labour market. I am not saying that many of the developments are not desirable but they have to be watched and we must guard against abuses in contracts. I am proposing to delete the words, "or a person who under a contract for services personally does work or provides services for another", and that is proposed by Deputies O'Sullivan and Rabbitte. In the light of this amendment I do not consider that Deputy Mitchell's proposal to substitute the words, "or a person who is a contractor or consultant", is necessary. The position is adequately covered under the revised definition. In addition, it would be very difficult to define in precise legal terms what is meant by "contractor" and "consultant" and that could give rise to more problems that it would resolve. I hope we have covered the points and the broader scope necessary under this definition and I ask the Deputies to accept it.
I am concerned about every single part of this definition section. We are rushing the Bill through the House and we may be creating problems instead of closing loopholes, which is the intention of the Bill. If we do as the Minister says, a person employed on a once-off contract to do some work over a short period of time could be included as a person who could engage in a trade dispute with a company or business who granted him the contract. Surely that is not what we intend to do in this Bill? We want people doing contract work of such a nature and continuity that in reality they are employed by the firm, to have the protection of the Bill. We do not want to make it impossible for business to resort to a certain amount of consultancy. That is why I propose amending the section and the definition of "contractor" My definition reads:
"contractor" means a person who under a contract for services personally does work or provide services for another other than a person who because of the kind, amount and continuity of the work done or the services provided would lead the Labour Court to deem that person to be a worker for the purposes of this Act.
I was conscious of the difficulty of defining "contractor" and that is why in my definition a discretion is granted to the Labour Court to say that these are workers, not contractors. I want to give the Labour Court power to judge in individual cases rather than giving carte blanche coverage to all contractors which, surely, is not the intention of trade dispute legislation. “Consultant” is defined similarly to “contractor” except that the work is done in the absence of a specific contract. It would be better to accept my amendment and the two consequential amendments and I ask the Minister to consider that.
I sympathise with what Deputy Mitchell is trying to do but we should refer to the subsection which we are amending in the first instance, the definition of "worker". The Minister has clearly taken on board the points made on Second Stage and he should confine the exemption of the definition of "worker" to two very precise categories — members of the Garda Síochána and the Defence Forces. Everybody else is deemed to be a worker if they are engaged in some kind of contractual relationship or a form of employment, etc. The concerns which Deputy Mitchell expressed are best dealt with in new legislation regarding part-time workers or in legislation dealing with contract law. A "contractor" seems to be a matter for definition within the contract itself in regard to the terms and conditions, rights and obligations, and it does not apply in this instance. We started by asking who a "worker" is. A "worker" is everybody except a member of the Garda Síochána, a member of the Defence Forces or anybody on contract work. That, clearly, was not our intention and we are simply deleting it. All we are doing at this stage is defining a worker for the purposes of this legislation. We are trying to deal with real problems but in the context of this legislation Deputy Mitchell's suggestion is cumbersome. It is totally unacceptable to say that if we do not have the definition right we will allow the Labout Court to decide on such matters. We must make the definitions.
What is the intention of the Bill? It is intended to bring further democracy to the workplace and to ensure that workers' rights cannot be usurped by small unrepresentative minorities. A situation could arise in which there are employees in a company and a group of individuals is brought in to do a certain amount of contract work for a specific period of time. Because they enter into a dispute with their employer they could, under this loose definition, place a picket on their place of employment, thereby jeopardising the rights of the majority of the employees. That is the danger we are creating and surely they are the kind of loopholes we are trying to close? I ask the House to reflect on this point. What is the purpose of this long delayed Bill? It is to clarify the need for democratic decisions on major issues by all trade unions and workers. We do not want to create loopholes by making no references to contract employment or consultant employment. These are widespread ruses which should be addressed in this and part-time worker legislation.
The Minister has adequately met this situation and if Deputy Mitchell reflects on his submission he will conclude that it is likely to create more confusion than exists at present. He said that we were trying to introduce more democracy to the workplace but, in the case which he postulates, it would be democracy if the smaller group of workers who are contractors or whatever decided to prosecute a trade dispute. It is a matter for the regulatory authority — the Irish Congress of Trade Unions — to decide how that dispute should be prosecuted. It may be prosecuted, as hundreds of disputes are, in a situation where there is no impact on the main employer. There is an arrangement whereby the union or unions representing the directly employed workers facilitate their going to work but it does not impact at all on the contract workers. If, on the other hand, the contract workers want to get the support of the remainder of the workforce on that site the facility is there to apply for an all-out picket to the Irish Congress of Trade Unions. The all-out picket procedures are well established and the request will be granted and ultimately applied if, in the opinion of congress, the conditions warrant it. The Minister's amendment adequately meets the situation and I would be happier not to start stirring muddy waters about what constitutes a contractor in the changing structure of the workforce.
I do not wish to muddy the waters any further and I take the point made by Deputy Rabbitte. When Deputy Mitchell was speaking a question came to my mind about contract work and protecting contract workers, which is what we are attempting to do here. Could there be a possibility, not covered by this or any other Bill, that main contractors could operate from their homes and contract work out to women? Does the law regard such a residence as a place of work which can be picketed? Would this type of contract work be covered in this Bill?
The procedures to be followed in such cases are contained in other sections of the Bill. The definition of "worker" in the Bill would adequately cover somebody working for such a contractor and the procedures they would have to follow are provided for in later sections. Even if we were to define the various types of contractors in the labour market, which I think is what Deputy Mitchell is proposing, straight away a legal person whose wisdom may be better than our combined wisdom would find a title for a contract which we had not defined. From our studies and from the debate on the part-time workers Bill prior to the Easter recess we found that there is a large variety of contracts in the labour market and the further we go into this area the more we find. If we do not define "worker" as proposed in the Bill we will have to define all types of contracts. It may be possible to list all the various contractors, consultants, full-time contractors, part-time contractors, management contractors, etc., but it would still allow someone to very quickly upstage the definition in the legislation. If we define "worker" in this way we will be excluding only two very clear categories so that there can be no confusion.
There was much debate on this issue in the House and we have changed our original definition as a result of this. The definition proposed is uncomplicated. I understand the points made by Deputy Mitchell but if I were to accept his amendments they would make the section unnecessarily complicated, which would defeat the purpose. I believe my amendment should cover any difficulties which might arise.
For every very complicated problem there is a simple solution which is always wrong. I must confess that that is not an original thought; I read it somewhere. The Minister said he is simplifying a complicated problem but I think he is wrong. We should pause for a moment and reflect on what we are trying to deal with here.
It is very clear from what Deputy Rabbitte said that he is concerned, as I am, that we protect the rights of, for instance, contract cleaners. These people have been employed for years cleaning offices, including the offices of this House, but because they are contract employees they are not protected. We want to give them that protection. This type of employment has become so widespread it can only be described as a ruse used by employers to avoid the duties and obligations imposed on them by social legislation. It is evasion rather than avoidance; they are evading their duties and depriving workers of their rights.
Drivers for dairies and other firms in this city, and I am sure throughout the country, were offered very attractive redundancy deals where they ceased to be an employees in the traditional sense; they were given a few bob and the ownership of lorries. These drivers are now employed as contractors. Many of these men who visit me at my clinic are doing the same work they did previously and are supposed to be self-employed but they are bogged down with problems of tax and social insurance. The Revenue Commissioners are chasing them and if they get sick they do not have enough contributions to receive disability benefit etc. I want that ruse which is used by employers to evade social legislation to be stopped. I believe all of us in this House want this evasion, which in tax parlance is wrong, to be addressed.
I want to refer to another type of contractor. When I was Minister for Labour a number of consultants were employed for a short period to do a specific job. Are we going to give these people who are not part of the general work——
There is no danger of Alex Spain going on strike.
In the case of the Bord Gáis dispute the Murphy contractors were brought from England to instal a pipeline. Should such contractors be in a position to cause a dispute which had the effect of disturbing the rights of the workers of, for example, An Bord Gáis? I want that point clarified. I do not think we can avoid addressing this issue on the basis that it becomes a little less simple. Of course, it is less simple; it is a complex and a complicated question which needs to be addressed. If we do not address these questions now that we have the opportunity to do so, we will be leaving gates open. I thought the purpose of this Bill was to close gates which should not be open.
We will be discussing the part-time workers Bill and their rights under social legislation later today and hopefully under the Government Bill which will be introduced later this year. We are discussing now the definition of a "worker". Section 8 states:
"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 work or provides services for another;
This definition includes everybody except the two categories which are excluded. The definition is as tight as we can make it. I think the Deputy is endeavouring to cover all workers. Perhaps he has some doubts about whether there should be some exclusions. I do not think that can be done. The provision here covers extremely tightly all those people coming within those provisions, with two exceptions. If this type of clause were included in the Protection of Part-Time Workers (Employment) (No. 2) Bill, 1989 — which is a different argument — when everybody would be covered, then some of the arguments being made might apply should these people have statutory cover with regard to social welfare, under the Unfair Dismissals Act, holiday entitlement and so on. For the purposes of this Bill we are including as broad and comprehensive a category of worker as can possibly be defined.
I take the Deputy's earlier point, that this may have been a quick decision. I should stress that arriving at this definition was not a quick decision. We went to some trouble looking for a precedent in earlier legislation, in the 1982 Act. We are adopting something that worked then and has withstood the test in the difficult intervening period. It is our belief that this definition will prove successful.
We move on to amendment No. 13 in the name of Deputy Jim Mitchell. Here I would seek the indulgence of the House while I advise Members that amendments Nos. 42, 44, 47, 49, 51 and 54 are consequential on amendment No. 13. Amendments Nos. 41, 43, 46, 48, 50 and 53 are alternative amendments. Therefore, it is proposed that, with the agreement of the House all these amendments be taken together for discussion purposes. Agreed? Agreed.
I move amendment No. 13:
In page 7, lines 13 to 19, to delete the definition of "industrial action" and substitute the following:
" `major industrial action' means any action which affects, or is likely to affect, the terms or conditions, whether express or implied, of a contract and which is taken by any number or body of workers acting in combination or under a common understanding as a means of compelling their employer or to aid other workers in compelling their employer to accept or not to accept terms or conditions of or affecting employment and which has the effect of significantly disrupting the business;".
In reality this amendment deals with a very important section, section 14, which is the main section dealing with secret balloting. For example, there are five subparagraphs in section 14 (2). I will read the first which says:
(2) The rules of every trade union shall contain a provision that—
(a) the union shall not organise, participate in, sanction or support a strike or other industrial action without a secret ballot, entitlement to vote in which shall be accorded equally to all members who it is reasonable at the time of the ballot for the union concerned to believe will be called upon to engage in the strike or other industrial action;
The words "industrial action" appear twice in the subsection. In the definitions in section 8 it is said that:
"industrial action" means any action which affects, or is likely to affect, the terms or conditions, whether express or implied, of a contract and which is taken by any number or body of workers acting in combination or under a common understanding as a means of compelling their employer or to aid other workers in compelling their employer to accept or not to accept terms or conditions of or affecting employment;...
As a former shop steward it appears to me that this definition could be construed to mean that almost any industrial action would require a ballot, even localised conflicts or decisions which can arise from day to day in any workplace. That is why I seek, anywhere the phrase "industrial action" appears to amend it by the addition of the word "major" preceding it — which would then read "major industrial action". Then, in the definitions section I seek to amend the definition of "industrial action" to read "major industrial action", adding the words "which have a significantly disruptive effect on the business" or something to that effect. My concern is, that to require a secret ballot for any industrial action could be extremely restrictive of trade union rights and, in the end, be counter-productive. If one frustrates normal exchanges and avenues of conciliation in the workplace one could build up a great deal of frustration which could overflow into more serious problems. I would ask the Minister to consider deleting the phrase "industrial action", to be more precise in its definition or to accept my amendment.
I was looking at the amendments that are consequential on Deputy Mitchell's amendment No. 13 and the alternatives tabled by myself and Deputy Toddy O'Sullivan.
For the purposes of definitions in this Bill we are discussing the meaning of the phrase "industrial action". I really cannot see — and should be obliged if Deputy Mitchell would confine himself to this net point — the merit of the addition he proposes which, if I read it correctly, would mean a difference between what is in the Bill and, after his addition, the words "and which has the effect of significantly disrupting the business". That is the net point.
I might make two points about that. For the life of me I cannot see how that can be construed — in Deputy Mitchell's phrase this may not be precise — as an extension of trade union rights or whatever, because that is a more restrictive definition of "industrial action". Certainly, it narrows the definition of "industrial action". More importantly, it almost renders it impossible of application in as much as I have seen trade disputes — and I have tried to avoid this kind of trade dispute to the best of my ability — in which minimal disruption was caused as a result of that trade dispute. If one is having a trade dispute the first rule is to endeavour to make it effective. But there have been trade disputes in which to say that it significantly disrupted the business was not always the case. There are any number of examples one could give of that type of circumstance.
If "industrial action" in this Bill was to be defined as only a circumstance in which significant disruption of business occurred, there could be all kinds of retrospective litigation arising therefrom having regard to the fact that "industrial action" is central to a number of sections we will discuss subsequently, for example, section 14 (2) (a), which deals with the rule changes that must be made in union rule books in order to comply with the provisions of this Bill. One of those is — and I refer to section 14 (2) (a) — that a union shall not organise, participate in, sanction or support a strike or other industrial action without a secret ballot. If the definition can be interpreted to include industrial action which significantly disrupts business, I suggest it is incapable of being applied in all cases. In a great many cases the intention of the union or workers involved would not be to significantly disrupt business, but rather to tweak the employer's tail, not to give him a root up the posterior. This very often precipitates a meeting between the parties involved and to agreement. In such cases, the taking of industrial action is not necessary.
It would be unfortunate if we were to extend the definition which has stood the test of time because this would invite litigation. It would also prove difficult in the industrial environment to observe it. At this stage I do not wish to refer to the consequences which fall into two categories. Deputy Mitchell has proposed that where the words "industrial action" appear in the Bill they should be amended to read "major industrial action". This reverts back to the definition of industrial action he is seeking to have included in the Bill. Deputy O'Sullivan and I are seeking to have the major provisions of the Bill including those on secret ballots confined to strikes and to excise the reference to industrial action. As I said, industrial action can mean almost anything you want it to mean. For example, a go-slow or a work to rule could be defined as industrial action.
To insist on a secret ballot before such action could be taken, as the Minister has done, is a recipe for disaster. Instead of having two minute stoppages in industry, which are resolved after two minutes, we will be inviting a rash of unofficial industrial disputes. There is no conceivable way that shop stewards in the workplace can ring union headquarters to make arrangements for a secret ballot if all they want to do is tweak the tail of the employer about some minor problem which is proving to be an irritant and incapable of easy resolution. This is unfortunate. I ask Deputy Mitchell again to reconsider his amendment.
I have been persuaded by what Deputy Rabbitte said and therefore propose to withdraw my amendment and support his. In my view, this makes sense, and I hope the Minister will do likewise.
May I take it all the other amendments cited as being related still stand?
I will withdraw my amendment at the appropriate time.
As I see it, amendments Nos. 42, 44, 47, 49 and 51 would fall.
That is correct, but an alternative could be put.
As far as amendment No. 41 is concerned, we would have a discussion and question but the amendments in the name of Deputy Mitchell would obviously fall. Amendment No. 13 is withdrawn. At this stage we must move——
I said I am prepared to withdraw the amendment but I would first like to hear from the Minister.
The definition of "industrial action" includes picketing, conspiracy as defined and action affecting contracts. It is necessary to include this broad definition to ensure all industrial action, short of a strike, will be preceded by a secret ballot under section 14. I would like to point out to Deputy Rabbitte that we see this as a fundamental part of the Bill, as I said on Second Stage. Industrial action, irrespective of the type, can lead to a significant disruption of business.
Section 14 states that the rules of a trade union shall provide for a secret ballot before organising, participating in or sanctioning a strike or other industrial action. Deputy Mitchell's main amendment proposes that the rules should apply only in respect of a strike or major industrial action and he intends withdrawing this amendment. I feel major problems could result from accepting this amendment. In the first place, it is not always clear beforehand what the effects of any form of industrial action are going to be, major or otherwise.
Apart from this, the phrase "major industrial action" is entirely subjective and could give rise to great problems of interpretation — would it cover work to rule, bans on overtime and go slows? What does "significantly disrupting the business" mean? The reality is that almost all forms of industrial action disrupt business to a considerable extent — that is what it is for and if it does not significantly disrupt the business it is of little use. For these reasons we should stick to the definition in the Bill as drafted.
Since I do not propose to accept this amendment Deputy Mitchell's other amendments fall. With regard to Deputies O'Sullivan's and Rabbitte's amendments it is my intention that the provisions in relation to secret ballots will apply to other forms of industrial action as well as strikes. Actions short of full strike action can often be as damaging and as disruptive as strikes, and indeed because of their nature can be more difficult to resolve. It is, therefore, essential that this type of action should be subject to the secret ballot provisions. As Deputy Rabbitte said, it is already normal practice for unions to ballot their members on proposals for many forms of industrial action short of strike action.
I cannot accept the amendments proposed by the Deputies.
I am beginning to realise——
Is Deputy Mitchell happy in respect of his amendments.
No. What I have intimated is that I will be prepared to withdraw my amendment but I would like to hear the views of the House first.
I am trying to be helpful. We are discussing the definition of "industrial action" and I wish to refer to what the Minister said. When we come to discuss the section we will speak about balloting procedures and so on but I was about to say that I am beginning to realise, with a great sense of foreboding, why Mr. John Dunne and the Federation of Irish Employers are so complacently quiet and satisfied with the Bill as published. The Minister has taken this opportunity to confirm that he intends to insist that secret ballots be held on proposals for any form of industrial action if trade unions are to enjoy the protection of this legislation. The section states that a union shall not organise, participate in, sanction or support a strike or other industrial action without a secret ballot, otherwise they would be offside and in default.
What do we mean by industrial action? Deputy Rabbitte has already referred to this but let us tease it out so that we know exactly what we are talking about. Industrial action means any action which affects or is likely to affect the terms and conditions whether expressed or implied of a contract and which is taken by any number or body of workers acting in combination or under a common understanding as a means of compelling their employer or to aid other workers in compelling their employer to accept or not accept terms or conditions of or affecting their employment. That is industrial action. Members of this House will remember the alacrity, sharpness and intelligence of former Deputy McDowell in this House. Just imagine him or any other senior counsel acting on behalf of an employer and interpreting this section. Industrial action can be anything from demanding that the quality of the coffee in the canteen be improved to demanding that basic wages be increased. Are we seriously to have secret ballots for every one of these? It is just unbelievable. This is Ceaucescu land. I do not know who is writing this stuff or how it has slipped in. I may be misinterpreting it but I do not think so because I listened carefully to what the Minister was saying. He said that we will get to it at a later stage when we get to section 14 and talk about the amendment in the names of Deputies Toddy O'Sullivan and Rabbitte to delete other industrial action for the purposes of voting.
We are dealing with definitions. I respect what the Chair is trying to do to make progress so I am confining myself to definitions. If the definition as proposed stands, literally any action such as tweaking the tail of the employer, as Deputy Rabbitte said earlier on, by any group of workers would be industrial action. Take the example of this House. If four or five people involved in any one section of it, at any grade, dissatisfied with, for example the quality of tapes that they are being supplied with because they are being constantly re-used and there is a buzz in the ears, decide that they want to get these improved, is there going to have to be a ballot before this happens? If they take any kind of action, like a go slow, or just non-compliance to some degree with the normal work practice without a ballot as provided for in section 14 then they would be outside the protection of the law. Is the Minister seriously proposing this? If he is, he is creating a potential place for himself in history and I do not think it is the place he had in mind.
I did not expect that we would be precipitated into this discussion so early because I was quite happy, for the reasons I outlined earlier, with the definition of industrial action as it stands. We are now, inevitably, because of the manner in which the amendments are grouped, involved in discussing the implication of industrial action and the manner in which it is included in the Bill generally.
I find it impossible to believe that the Minister is fully aware of the implications of what he is seeking to do here. I say that in the full knowledge that the Minister's industrial experience and knowledge of industrial relations is well known. I would suggest, however, that he has little personal experience of what this will do in the manufacturing sector and in the industrial sector generally. To require a ballot for all industrial action as defined in this Bill is an invitation to a rash of unofficial disputes.
It is like the reference I made earlier to excising the worker against worker dispute. We are also caught up in the fashion of the times, that it would be churlish at the minimum, to oppose the idea of a secret ballot. None of us has done that; but to impose an obligation to have a ballot every time, say, women workers in a complex electronics assembly plant have a complaint about toilet facilities but are getting no response from their employer and are threatening to stop work, would lead to more industrial disputes and short term stoppages than we have seen in the last 20 years. That is not an exaggeration.
Let me put in context what the Minister is talking about here. We are not just talking about section 14. We are talking about removing the immunities that apply to workers normally in a trade dispute if it can be shown or even suspected that they did not comply with section 14 of this Bill which requires the trade unions concerned to enshrine in their rule books the particular provision of section 14. In other words, within two years of the passing of this Act all trade unions shall contain a provision in their rule books as stipulated in section 14 and if any section of that is not complied with then the immunities that are conferred on workers in a normal trade dispute are removed. It is preposterous that that would be suggested.
Quite frankly the Federation of Irish Employers who agreed with that and lobbied the Minister behind the scenes on it are doing a serious disservice to employers in this economy because the facts are that anybody who has the remotest connection with industrial relations in the private sector knows that every day of the week there are small areas where the shoe pinches and which can be resolved without any elaborate dispute, work stoppage or whatever. Under the definition of industrial action, however, that situation will be included here. I am not sure that the Minister intended this. Let me refer the Minister to the words of a former Minister for Labour from his own party in 1969. The then Minister, Dr. Hillery, made the point — and he abandoned a Bill on this basis — that it was useless bringing legislation to this House for enactment if it did not have the voluntary co-operation of the trade union movement. That principle is as valid today as it was then. The trade union bureaucracy, for example, might wish — many times as a trade union official I so wished — to have these terms, but to think that it would be capable of being applied in the actual industrial environment is to live in Disneyland. In the dynamic of the private sector, in the routine day to day working of industry, there is no way an obligation ought to be imposed to set the secret ballot mechanism in train.
