We are resuming on amendment No. 41 and I understand that amendments Nos. 44, 46 to 51, inclusive, 53 and 54 are being taken together.
Industrial Relations Bill, 1989: Committee Stage (Resumed).
SECTION 14.
Including the Old Testament, and we have to dispose of the lot by 4.30 p.m.
Debate resumed on amendment No. 41:
In page 9, subsection (2) (a), line 9, to delete "or other industrial action".
—(Deputy Quinn.)
The Minister is seeking to introduce a secret ballot, to move from the position of there being no statutory obligation to hold a secret ballot in the case of a trade dispute to one where a secret ballot will be imposed by statute, not only for a primary strike but for any dispute and, wider still, for what is called any other form of industrial action. Although a secret ballot is not required by law most unions, if not all unions, have no objection to there being a requirement to hold a secret ballot for a primary strike. However, it is unwise, wrong and unworkable, to seek to extend the requirement for a secret ballot to cover all forms of industrial action. It will invite a rush of unofficial disputes because unions will know that the immunities conferred by subsequent sections will not be conferred in circumstances where they act outside of the provisions of section 14.
My submission is that minor disputes are part of the dynamic of the private sector in particular. What will now happen is that minor disputes will become major disputes because workers who will be required to go through the elaborate and tedious procedures laid down in the Bill in order to get their union executive to convene a meeting and hold a secret ballot in the manner prescribed and so on, may say that they could resolve their difficulties in a five minute dispute but as they will have to have a secret ballot they might as well make a proper dispute out of it.
That is one reaction, and the other is that workers will know that their union executives and leadership will not want to know about this kind of situation. They will turn a blind eye; the workers will take whatever action they want to on the shop floor but when the union executives are asked to account for it they will say that they did not know or that they did not make it official. What does the Minister propose to do when all these minor fractures happen throughout the private sector? Put all the workers in jail? It is simply not practicable. I will not go on because the Minister indicated the last day that he was rethinking this aspect of the section.
I repeat that there is no objection on any side of the House to a secret ballot for a primary dispute, although we will later come to difficulties it will cause in the operation of the all-out picket. Minor disputes are part of the everyday life of the industrial sector, but they will become major disputes if the Minister insists on enshrining this in law or they will invite unofficial action on a scale that we have not seen before.
Under the Bill the secret ballot provisions apply to strikes and other forms of industrial action. "Industrial action" is broadly defined as all forms of disruption short of strikes, and it has been claimed that a requirement to have a ballot in all cases could cause chaos and lead to a rash of unofficial disputes. These difficulties are exaggerated although I can see that in some cases it is essential that balloting arrangements apply, as some forms of industrial action such as working to rule, a go slow or an overtime ban can be equally — if not more — disruptive than a full-scale strike. I spoke about this the last day and I do not want to go into it in great detail now. People who say that the only kind of action which causes disruption or the closure of a plant is a strike, do not understand what happens. It is nonsense for any Member of the House to take that view. I know that in many cases a go slow or unofficial action means that the workforce are idle at certain times while still drawing their pay, but it should be possible to provide a definition to differentiate between major and minor industrial action.
There are many cases of unofficial action but we do not need to deal with them until they are made official. I gave a commitment to Deputy Quinn and Deputy Rabbitte that I would examine certain points. I am doing this at present and we may be able to make progress in regard to them on Report Stage. I have in mind the point I already made in regard to secondary picketing and the word "calculated". I also intend to carefully examine an amendment in relation to one-person disputes to take account of the points raised by the Deputies. I have also agreed to examine the definition of "industrial action". I am still considering this matter with my legal advisers but there is great difficulty in moving from the present wording in the absence of an acceptable alternative. However, we will seek to do so and I reiterate the commitment I made on the last day.
In looking at the redefinition of "industrial action" the Minister might consider the following wording: "Industrial action means any action taken by any number or body of workers acting in combination, or under a common understanding, which involves a partial refusal to work or a refusal to carry out work or to provide services normally carried out or provided within the terms of their contract of employment as a means of compelling their employer to accept — or not to accept — terms or conditions affecting employment but does not include a refusal to carry out work or provide services which, if carried out or provided, would frustrate a strike or industrial action engaged in by others". On the understanding that comprehensive and constructive consideration will be given to this definition, I will withdraw my amendment.
Amendment, by leave, withdrawn.
I move amendment No. 42:
In page 9, subsection (2) (a), line 9, after "other" to insert "major".
We cannot simply accept the phrase "any industrial action" because it could bring the legislation into disrepute. You could have circumstances in which a minor dispute could be settled very quickly locally by discussion but it could blow up because somebody insists on having a ballot. Therefore, we cannot let that phrase stand. If we preceded the word "industrial" with the word "major" to read "other major industrial action" it might help.
I acknowledge that "major industrial action" is not very precise but it at least indicates more clearly what I think the House and the Minister wish to enact, that in any major stoppage there would be a secret ballot but that it would not be invoked for ordinary, everyday skirmishes. I ask the Minister to consider an amendment along the lines I suggested. In relation to what Deputy Quinn said, you cannot provide for every incident which will take place but the words "other industrial action" are too broad. My amendment may not be perfect but it is an improvement.
We discussed this at great length on the last occasion and, therefore, the definition of "industrial action" was not arrived at in a hurry. I will examine all these points of view but there are difficulties involved. A work to rule in a large plant is certainly "major industrial action" and I can give many other examples. The same applies to a go slow or an overtime ban which may halt productivity. It is also hard to define "minor industrial action" but we will examine the matter to see if any improvement can be made. It is not a simple area.
Amendment, by leave, withdrawn.
Amendments Nos. 43 and 44 not moved.
Amendment No. 45, which is different from the other amendments, was not included. Deputy Rabbitte, to move amendment No. 45.
I move amendment No. 45:
In page 9, subsection (2) (b), lines 16 to 20, to delete from and including "votes without interference" down to the end of the paragraph and substitute "may do so;".
I might explain the compelling reasons for my tabling this amendment. This is the requirement that must be inserted in unions' rule books for them to come within the terms of this Bill. I might read into the record subsection (2) (b) which says:
... the union shall take reasonable steps to ensure that every member entitled to vote in the ballot votes without interference from, or constraint imposed by the union or any of its members, officials or employees and, so far as is reasonably possible, that such members shall be given a fair opportunity of voting;
Frankly, I am amazed at that construction. I would ask the Minister what in Heaven's name is the reason for all the constraints imposed in that subsection? Why can we not have as I recommend in my amendment:
(b) the union shall take reasonable steps to ensure that every member entitled to vote in the ballot may do so;
The position, as it stands, is extraordinarily restrictive in terms of how a trade union normally does its job. Is a trade union official, making a recommendation on behalf of his executive, trying to influence the outcome of a ballot, seen to be interfering with the conduct of the ballot? Is he leaving himself open to an action being taken against him? It appears to me that the ordinary task one undertakes in endeavouring to influence one's members this way or that way — which is a perfectly legitimate and democratic thing to do — is being constrained here.
One of the matters about which I am worried — something we have not touched on at all — is what happens when the commission get round to introducing draft codes of practice, for example, when they introduce a code of practice to deal with trade union balloting, as they did in the United Kingdom? In those circumstances — bad and all as was the original law — it was rendered draconian as a result of the draft code of practice sought to be implemented. I should like to have had more time to deal with this in greater detail.
If the House will permit, I should like to quote the conclusion of Mr. Bill Wedderburn, an acknowledged expert on labour law, who wrote the book The Worker and the Law. He said there were four underlying objectives in the Tory code introduced:
To delay industrial action for as long as possible; to extend the grounds on which an injunction can be obtained against a union; to induce a majority vote by members against industrial action and discourage ballots and, therefore, official union strikes.
He concluded that the lack of reciprocity in the draft code was "staggering." He said that by those means union power was to be weakened and employers' power increased.
I am sure the Minister will contend that we would not do anything like that here, that that is what has been done by the Tory Government in Britain. I might refer the Minister to page 55 of this document produced by the Institute of Employment Rights where he will find, amazingly, in paragraph 54 the following:
... The law requires your trade union to ensure in this ballot:
(a) Your vote will be secret;
(b) You are allowed to vote without interference from or constraint imposed by the union or any of its members, officials or employees.
I would seem to have ascertained where the Minister's advisers discovered this paragraph. I am sure the Minister would never admit that he would borrow from Norman Tebbitt's legislation but it is extraordinary that it is precisely the same wording as that introduced in Britain. Of course, as Mr. Bill Wedderburn said, it is "staggering" in its partiality. I rest my case on that. I do not think the British Tory solution is appropriate here. Rather we should go for a wording to the effect that all reasonable steps are taken to ensure that every member entitled to vote in the ballot may do so.
I have read a great deal of Lord Wedderburn's writings and would agree with many of them. He is an eminent Labour Peer and adviser to the British Labour Party on industrial relations. I do not think he could advance any other view bearing in mind his capacity in that respect. I am sure Members would find that certain portions of our legislation adopt the same wording.
I might say to Deputy Rabbitte that the provision in subsection (2) (b) is intended to ensure that every member of a trade union who is entitled to vote is given an opportunity to cast his or her vote without constraint or undue influence; in other words, that people can vote whatever way they want to. I do not see anything excessive in this provision. Certainly it is not what happens very often. I could give the House many examples of circumstances in which individuals wishing to vote are not allowed register their democratic decision. Instead they are harassed and are not allowed register their democratic decision, the ballot having been set up in such a manner that they must show their ballot paper, placing it in front of people. I am not prepared to implement legislation carrying such constraints. Nonetheless, in reality that is what happens in many instances.
In this clause we have inserted the minimum justifiable. I do not see anything excessive in it. I would not see it interfering with the ability of union officials stating their case. I would agree with Deputy Rabbitte in that respect. Naturally, a trade union official should be allowed speak to his members and present whichever side of the case he chooses. Indeed, I would contend that it is better that a trade union official present the case and circulate any relevant data. All of that is legitimate. But the provisions of this subsection deal with circumstances in which a person goes to cast his franchise when he should at least be afforded some kind of normal protection. We are merely seeking that trade unions provide their members with a fair opportunity of voting whichever way they want without interference or constraint. I might again read into the record the wording of subsection (2) (b):
the union shall take reasonable steps to ensure that every member entitled to vote in the ballot votes without interference from, or constraint imposed by the union or any of its members, officials or employees and, so far as is reasonably possible, that such members shall be given a fair opportunity of voting;
I cannot see how that provision could be much milder.
May I ask the Minister two questions? For example, would a recommendation by a union official to his members not to accept the terms of a proposed settlement be considered interference?
No, definitely not.
All right. Say a union said: you can vote on this matter but you are going to have to come all the way into, say, Parnell Square or Liberty Hall in order to cast your vote — from, say, Tallaght, Blanchardstown, or wherever — and you can only vote between the hours of 10.30 a.m. and 4.30 p.m. on a Saturday, would that constitute undue constraint?
In such circumstances it would be a matter for the trade union to make proper arrangements. As we all know what trade union officials tend to do is place ballot boxes in the backs of members' cars and then travel around and allow members vote in the proper way. But it is better that they travel around with ballot boxes rather than merely counting heads or hands which is what we are endeavouring to avoid.
Deputy Rabbitte is not being reasonable in his proposal. It is really scrurrilous of him to endeavour to discredit our Minister for Labour by associating him with Norman Tebbitt. At the same time I have to say that, with regard to this provision, probably Mr. Tebbitt is right; he was not wrong about everything and in this he is probably right. Anyway, our culture is different. What is being sought here is that the normal rules and regulations governing secret balloting be observed in the way we, as elected representatives, must observe them at election time. We cannot be in the polling stations constraining people to vote for our candidature or our party. I feel this is a reasonable provision and I will certainly support the Minister on it.
With all due respect, a Leas-Cheann Comhairle, the Minister did not answer the questions put to him. With all due respect to him and to the rest of us, it really does not matter what we think, the courts will make the decision on the basis of the written word in this section. When Deputy Quinn asked the Minister whether a recommendation by the union to reject the terms would be considered interference, he answered no. I would like to think that is the case, but I have expert opinion available to me that suggests that canvassing rejection of the terms could precisely constitute the type of interference envisaged in this section. What is the necessity for a section which says "the union shall take reasonable steps to..." allow everybody a fair chance of voting. I accept that, but the paragraph continues "...without interference from, or constraint imposed by the union or any of its members, officials or employees". It seems to me that there is any number of possibilities open to a trade union official or shop steward which could be construed as constraint by any member of the union afterwards. Let us remember there is always a minority in a ballot, you rarely ever get 100 per cent agreement. He may say he was pressured, canvassed or interfered with by a shop steward. As far as I am concerned it is part of the democratic process that the executive of the union would form a view on a package of terms and would canvass support for that point of view.
I believe this is completely unnecessary. I am quite prepared to say to the Minister to tag onto the end of the paragraph that the union should take reasonable steps to ensure that every member entitled to vote in the ballot "may do so" and to change the phrase towards the end to "members will be given a fair opportunity of voting". As Deputy Jim O'Keeffe remarked earlier today, the paragraph is prefaced by the words, "the union shall take reasonable steps,..." However, constraints are then inserted in the section. I wonder why no constraints are being imposed on employers, as there are no corollary constraints on the employers who may, in any given number of ways, interfere with the conduct of the ballot. We all know that a big stick can be waved. There are no restrictions on the employers while restrictions are being imposed on the trade unions. I am most unhappy with this.
I have explained the genesis of this section and where the Minister's advisers found it. I do not think its paternity does him any credit. I think it is an important matter, notwithstanding Deputy Mitchell's treatment of it as a light matter. It is unfair to the trade union movement. With all due respect to the Minister, I do not accept his arguments that wholesale intimidation or harassment goes on in the Irish trade union movement. I have never seen workers being interfered with when trying to cast their vote in a ballot. There are sensible regulations and precedents laid down that have governed the practice of secret ballot for as long as trade unions have existed in this country. I know there is a division in so much as the British based unions have a tradition of a carpark mass meetings method of voting but they will have to accept that the law applies to them as to everybody else.
I think it is an unnecessary slur on the trade union movement to require that a provision must be inserted which says that the workers must vote "without interference from, or constraint imposed by the union, or any of its members, officials or employees ..." That is unnecessary and I ask the Minister to reconsider this section.
I wish to make a brief comment before the Minister because we might want to devote some of this scarce time to the position on the congress all-out picket. In reply to my previous question, the Minister suggested that it would be quite reasonable and ordinary for a trade union official to take the ballot box around to places of work in order to facilitate members. Is the Minister aware that the Registrar of Friendly Societies is currently saying to the largest union in the country that they will not be allowed to do this in respect of a ballot on the establishment of a political fund? The Registrar of Friendly Societies has taken a view contrary to the Minister that the ballots will have to take place in the union office. Their view is the converse of what the Minister has just said.
I will now deal with the questions. I did not refer to wholesale abuses but to abuses. Indeed, Deputy Rabbitte is well aware of the abuses. This section can only be read in relation to voting. We are not talking about people coming in to meetings and making their points about what way people should vote, or directing people as to the way the branch would like them to vote, or when people point out the complications that will arise if they do not vote the way the unions wishes them to do so. Under this section, people are entitled to go to a table or a box and to cast their ballot without having to show their hand or openly indicate what decision they have made. It would be wrong if we did not provide this safeguard.
In reply to Deputy Quinn's question, the practice has always been when major issues were being decided, such as decisions on national agreements or union amalgamations — I am particularly familiar with the procedures on amalgamations because I saw a number of ballots on amalgamations a few months ago — the trade union officials brought around the boxes. The Deputy knows as well as I do that the Registrar of Friendly Societies is an independent person. However, I think it would be restrictive if people had to go to a certain place because the procedure has always been that people could go to their place of work. The clause in section 15 (b) is to give people an opportunity to ballot in the normal election process. This is a right they are entitled to. The wording used is not in any way restrictive.
I think what Deputy Rabbitte has proposed is not reasonable, but he made one good point in his earlier submission, that there is no similar constraint on employers from pressuring their employees in a strike ballot. It would behove the Minister to consider that point for an amendment on Report Stage.
There are a number of important amendments coming up and I do not wish to detain the House at this stage by calling a vote on this section. However, I am disappointed with the Minister's response because I cannot see how it is such a central matter for him. I am not ascribing to him the views concerning the manner in which this will be interpreted, but the facts are as I have said, that it is not really what the Minister's intentions are that we are concerned with but with what the section says. The section says very explicitly, and this must be enshrined in the rule books of the union, that they must provide a facility to vote "without interference from, or constraint imposed by the union, or any of its members, officials or employees ..." I do not believe it is possible in a political party, in a trade union or in a sports club to have such an unreasonable rule because we are all free to canvass and influence the outcome and try to win wavering support to our point of view. Nobody would be a greater expert in that than the Taoiseach, who has joined us, and I am sure would agree with me. It is a perfectly democratic thing for us to seek to do.
Not even he is allowed to stand over the ballot box and say to the voter: "Vote for the Taoiseach". That is what the Deputy is saying.
It is not what I am saying. I would be quite happy — as I am sure the trade union movement would be — to agree to a provision which would require the union to take all reasonable steps to ensure that every member entitled to vote may do so. As I have said, if the Minister wants to rewrite the section to provide for what is listed in the last line, that members shall be given a fair opportunity of voting, I would be quite happy to take that on board but I am most unhappy with the position whereby a trade union, or an individual member, employee, official or shop steward is open to legal action as a result of a crank subsequently saying that pressure was put on him or that he was interfered with in the course of exercising his right to vote. There are head cases and cranks in every large organisation and that is likely to happen. I cannot see why it is of such central importance to the Minister not to reframe the section.
I take it Deputy Rabbitte is not pressing amendment No. 45.
If the Minister agrees to consider the matter, I will come back to it on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 46 to 51, inclusive, not moved.
Amendments No. 52 and 55 are related and Nos. 57, 59 and 60 are alternatives. It is suggested, therefore, that they be taken together for discussion purposes.
I move amendment No. 52:
In page 9, subsection (2) (d), lines 32 to 35, to delete all words from and including "the trade union" down to the end of the paragraph and substitute ", in the case of ballots by more than one trade union, an aggregate majority of all the votes cast, favours such strike or other industrial action;".
The question of the all-out picketing arrangements operated by the Irish Congress of Trade Unions has been the subject of much discussion and commentary recently. Much of what has been said was misleading and inaccurate. There was never any question that the Bill would outlaw or make the all-out picketing arrangements illegal and there is nothing in section 14 as it stands which would do this.
I accept fully that the all-out picketing arrangements have brought a great deal of order to what was previously often a very chaotic situation. I wish to make it clear that the all-out picketing arrangements can continue subject to the various unions involved balloting their members. I believe that giving members the right to ballot in these situations is fundamental to the whole principle of having secret ballots in industrial disputes.
Having considerd the various concerns expressed in consultation with congress and the FIE I am proposing two amendments in section 14. I acknowledge the suggestions and points that were made by Deputies on all sides of the House during Second Stage. The first of these arises in subsection (d) which deals with the position where there is more than one union in an employment and the members of one union vote against a strike or other industrial action but a majority of all the employees vote in favour. In such circumstances the union whose members voted against will be entitled to call on their members to participate in the strike. The present wording of subsection (d) could be interpreted as requiring that formal arrangement for the aggregation of ballot results be in operation. Amendment No. 52 makes it clear that a formal arrangement is not necessary. It simply requires that the majority of all the votes cast be in favour of the strike or other action.
Amendment No. 55 will add a new subsection to make it clear that a decision to support a strike by another trade union will not be implemented until an all-out picket is authorised by the Irish Congress of Trade Unions. This will ensure that the Irish Congress of Trade Unions retain their position of having control over whether picketing is extended to cover members of unions other than the union directly involved in the dispute.
I am truly sorry that the debate on this set of amendments is curtailed, because they are central to the purpose and the success of this Bill. I said earlier in the debate that in practice this Bill is needed to deal with cases largely where there are non-congress unions involved. I think all sides of the House would agree that the practice and arrangements within congress, the all-out picket arrangements and the pre-strike discussions that take place between congress unions, are very effective. The real problem in the past — and we can reasonably foresee problems in the future — have arisen most often where there are non-congress union involved.
The Minister's proposals in amendments Nos. 52 and 55 improve the Bill but they are still far from what is required. Probably the most significant omission in the Bill is its failure to deal with the case where one union which is not a member of congress, even where that union represents a minority in the workplace, decides to strike, even after a secret ballot, and by placing a picket, without any consultation with other unions, can close the firm. That union may be in the business of hyping up activity to poach members from other unions, as is frequently the case. I would like to have spoken at much greater length on this issue but I realise that other speakers wish to contribute. I would ask the Minister to reconsider this matter for Report Stage. I will be putting down an amendment on Report Stage so that we can consider it in more detail.
I would ask Deputy Rabbitte and Deputy Quinn to bear each other's presence in mind. I will call Deputy Rabbitte and would ask him to leave a minute for Deputy Quinn.
I will be very brief. The all-out picket has made a major contribution to good order in Irish industrial relations. It is clear, and is accepted by the Minister, that this Bill will make the all-out picket inoperable. I agree with the Minister that there has been some wild discussion about making it illegal but that is not the point. The point is that it will make it inoperable and I do not believe the Minister's amendment goes far enough to restore that situation. Employers and Government, on many occasions, have been very grateful for the availability of the all-out picket mechanism which has been used very constructively, the threat of the application of which has precipitated a settlement in many disputes. Any restrictions on the use of the all-out picket will be regretted.
Up to now the executive or industrial relations committee of congress could make a decision on whether or not to grant permission for an all-out picket, based on the merits of the dispute and not on whether they had an aggregate ballot of all the workers. The primary union involved could bring a case to congress who would examine it on its merits and would decide whether or not to grant the all-out picket. The requirement being imposed in this amendment is so restrictive as to make that inoperable and I think we will regret its passing.
I thank Deputy Mitchell and Deputy Rabbitte for curtailing their potentially extensive contributions in this regard. I would simply suggest to the Minister that amendment No. 60, in the name of Deputy Toddy O'Sullivan, which is an addition to the section and does not detract from anything the Minister or his advisers want to do, gives an either-or option. We would all recommend that if people are going to go on strike they should, where possible, have the right to vote in advance without constraints, interference or pressure. The all-out picket mechanism, which is part of our culture and which has worked very well, should not be made inoperable, which is, in effect, the considered view of this Bill. I would simply ask the Minister to seriously consider this amendment in particular. The aim of all these amendments is much the same but amendment No. 60, which gives an either-or option does not take away from what the Minister is trying to do.
I wish to make a few brief comments. Under the provisions of the Bill it is essential that there is a ballot.
We are all agreed about that.
What would happen if one trade union differed from another?
First, if there were a number of trade unions in a workplace they would all have to ballot; that is agreed.
That is accepted.
Second, the total of the votes will decide whether there will be strike action. Third, there will be no strike until Congress declare that whatever ballot took place will take effect. Congress have the last say. During the debate here the last day I was asked to consult further. I consulted the Congress of Trade Unions, and we still have time to look at the legalities before the Report Stage. This process is now acceptable to Congress. If anyone can think of something stronger, they should let us know; but this covers the two essential parts — the aggregate of the ballot and the fact that Congress have the final say.
It is now 4.30 p.m. and I am required to put the following question: "That the amendments set down by the Minister for Labour to section 14 are hereby made to the Bill and that section 14, as amended, and sections 15, 16, 17 and 18 are hereby agreed to."
Question put and declared carried.
SECTION 19.
Amendment No. 66. Amendments Nos. 67, 68 and 69 are alternatives, amendment No. 70 is related and amendment No. 71 is an alternative to amendment No. 70. It is proposed, therefore, to take amendments Nos. 66 to 71, inclusive, together for debate. Is that agreed? Agreed.
Mr. Mitchell
I move amendment No. 66:
In page 11, subsection (1), lines 14 to 17, to delete all words from and including "that employer shall" down to the end of the subsection and substitute the following:
"no person shall be entitled to apply to any court for an injunction restraining the strike, the picketing or other major industrial action unless notice of the application has been given to the trade union and its members who are party to the trade dispute.".
The purpose of amendment No. 66 is to improve and clarify the provision in section 19 (1) which, as I read it, prevents employers seeking interlocutory injunctions without the knowledge of trade unions. As the subsection is drafted, somebody else could seek an interlocutory injunction without informing the trade unions.
The purpose of my amendment is to make it clear that no person shall be entitled to apply to any court for an injunction restraining the strike to picketing or other major industrial action unless notice of the application has been given to the trade union and its members who are party to the trade dispute. In the past, the granting of interlocutory injunctions which have taken place frequently in the past, some times in the judge's home in the middle of the night, unknown to trade unions who are not represented at the proceedings, has all too frequently been a cause of concern. It is only right that due notice of any such proceedings in future should be given to the union so that they can be represented, whether it is the employer or some other person who seeks that interlocutory injunction.
I agree with the thrust of what Deputy Mitchell has said but I am not so sure that this amendment is the best way to achieve it — there are alternative amendments listed. In any event, the net point is that it is completely inadequate to have a situation where it is provided that the employer shall not be entitled to apply to any court for an injunction. What about a third party? Since there are any number of situations where a third party may wish to apply for an injunction, confining it to "that employer" is unacceptable and again shifts the balance from the trade union movement.
We are discussing amendments Nos. 66 to 71, inclusive, which include my own amendment No. 69 which proposes the insertion of the words "or picketing" after "action" in line 16. In the interests of clarity it is important to note that we are not just talking about an injunction restraining the strike or other industrial action because some other person might seek to restrain picketing. In that case, you may as well, in many circumstances, call off the dispute. If a third party were to seek an injunction to restrain picketing then, for all intents and purposes, that could mean that the strike would be completely ineffective because the outward manifestation of a trade dispute being underway is the physical picketing boards and the act of picketing. If an injunction could be secured to terminate picketing or restrain it, that could be very damaging to the dispute.
In the interests of brevity I would like the Minister to clarify if he is prepared to accept the replacement of the word "employer" with the word "person". If so, it would meet our concerns. The example I have in mind is the customer who is dependent on a particular product or service being supplied by an employer and who, in order to ensure that he or she gets that product or service, places an injunction on the trade union. As we read the law, they would be entitled to so do.
The subsection provides that where a union or a group of unions hold a secret ballot in favour of strike action or industrial action and the company or group of unions give the employer at least one week's notice of the strike, the employer will not be entitled to see an ex parte injunction. Without going into any detail, and in view of what we said earlier, we are switching the balance one way. This is an important point for the trade unions. It has been fought long and hard that this position would change because, as Deputy Mitchell said, it has been used very unfairly. Instead, the employer would be required to give notice of his intention to seek an injunction to the union and workers concerned so that the workers can be represented at the hearing.
This is to remedy the abuse of injunctions by some employers in trade disputes. Ex parte injunctions are often sought and granted on the basis of an employer's sworn affidavit sometimes late at night or in the judge's home as has happened in a substantial number of famous disputes over the years. Injunctions are often sought by employers as a bargaining tool and not for the purpose for which they are intended — the important point is that it has disrupted and caused so many problems in industrial relations matters — namely, to preserve the status quo until a full hearing can be arranged. Trade dispute cases rarely come to a full hearing. Ex parte injunctions will continue to be available in the case of trespass, damage to property, or actions likely to cause death or personal injury.
In relation to the amendments it is clear that actions of this nature against trade unions will invariably be taken by employers. That has been covered in the section. This provision puts specific constraint on employers and it would not be appropriate to include other persons. In any event, I have been legally advised that third parties would be unlikely to establish the necessary locus standi to take any action. In drawing up these provisions I had to arrive at a careful balance in the rights and the interests involved, including the question of access to the courts. However, picketing is embraced by the definition of industrial action in section 8 and it is not necessary to refer to it specifically in this section.
I agree that the Minister has been given advice to the effect that the locus standi of a potential customer would probably be dismissed, but why should we allow that probability to be assigned to some particularly conservative judge — we are not without a few of them? Why allow a probability of doubt to be written into the law? If that is the only reason the Minister is saying he is not prepared to say “employer or other person” or to remove the word “employer” and substitute “person”, simply that it is the assessment of a current group of advisers that on the basis of their knowledge of the current judicial culture it is unlikely that probability would allow them to establish locus standi— that is wing and a prayer country. We have an opportunity here now to make it hard, fixed and fast, and we have all agreed that the less discretion of a value judgment kind we give to people outside the making of the law and the interpretation of the law, the better for all concerned. I think the Minister's intention is that third parties should not be entitled to seek injunctions. If the Minister can clarify to the House that it is not his intention or the intention of the people who drafted this legislation to provide for the possibility, however remote, for third persons or persons other than the employer to seek and successfully obtain an injunction, then he should write it into this Bill at this time. However, if that is not his intention and he wants to leave open the possibility for persons other than the employer, perhaps he will indicate his position on it.
I would like to press the Minister on this because he has not been all that forthcoming on other amendments. He has been very nice and he has told us he will look at things on Report Stage etc., but he has not in effect accepted any proposals to improve this Bill from this side of the House. That is the purpose of Committee Stage. No principle is involved and it clarifies the Bill. The Minister should be gracious enough not only to accept "no person" but the picketing addition as well.
Deputy Quinn is correct in that I have no objection, but it is a question of balance on the rights and interests involved. We are taking away a right that employers have had. They could — wrongly in my view and I think everyone agrees — get an injunction. From an employer's point of view that is major, and now employees will enjoy a significant gain because now they will not be disruptive when following normal procedures. From now on if trade unions and their workers follow the fairly simple and straightforward procedures of having a ballot and giving one week's notice, the employer cannot get an injunction against them. We all have had that right. When we are hard done by or people have done something against us we could take an injunction. That right has been taken away. The argument is that if we take away totally the right of a third person, we are moving close to the area of constitutional rights, though that is an unlikely occurrence. I am giving the view to the Deputy. Are the Deputies saying that it is a question of "person", not really "third party" rather than "employer"?
"No person".
Under the arrangements we are now putting in place, for a strike to take place there has to be a secret ballot, access to the balloting process has to be without interference in terms of physical access, the outcome of the ballot has to be counted and it has to be conveyed then to the individual employer concerned, and one week's notice has to be given. That is what we are proposing to be the law. That process may very well come at the end of a long hot summer of aggravation or whatever and there may be anger and short temper on the part of nervous people. The ballot has taken place and notice has been served, and the Minister is saying at that point the employer will not be able to get an injunction to prevent that strike from taking place. If you recognise, having gone through the process, that those types of ex parte or interlocutory injunctions should not then be open to an employer, it seems the provision is wide open to abuse if a third party can go in, and, establishing locus standi, very well claim that they were going to be an aggrieved customer, were going to suffer a great material loss and be out of pocket or whatever.
We will try to balance it. The Minister entered a second argument in his second response which was that removing the rights of persons other than employers to seek an injunction might possibly be a constitutional matter. It seems contradictory to the argument earlier, that the Minister was advised it would be difficult to anticipate a situation where a person could establish locus standi. Maybe we should pursue what will constitute locus standi in these circumstances. I think the other Deputies here are simply saying there is a process that is now going to be enshrined in law. In most cases it combines with practice anyway but it is now going to have the force of law and it clearly has a time built into it, so there is no surprise likely in strike action where people observe that process. The fact that there has been a call for strike action, that there is a ballot and one week's notice is required in reasonable terms means a minimum of ten days and in all probability something much longer.
The urgency factor that comes into something like that for a third party person can be readily addressed. Therefore, if you leave open the door you are allowing somebody else to decide whether a person other than the employer has the right to file and obtain an injunction. If it is not the Minister's intention to provide that employers or other persons acting on behalf of their own interests or of the employer's interests have access to the courts for the explicit purposes of injuncting this action, then he should accept this amendment.
The Minister has brought in the question of the possible unconstitutionality of amending this provision to say "no person". Even with my man-in-the-street knowledge of the law I do not think it bears any consideration. It seems more probable that what might be unconstitutional is having injunctions granted without those who are sought to be injuncted being present to defend themselves or put their case. That seems fundamentally unjust.
We talked previously about multi-employer locations, and this problem will most likely arise in relation to those places, such as ports, airports, shopping centres or industrial estates. It could be another employer who is adversely affected by a picket because a picket has to be at the approaches in given circumstances. The restriction here is only on the individual employer involved in the dispute. It does not extend to other employers in multi-employment locations. It is only a small step forward, and the Minister should see his way to accepting the amendments. It makes absolute sense that unions should be informed of the ex parte injunction and should be able to go to the court and say that this should not be granted because the secret ballot and other provisions required by law have been observed. I hope the Minister will accept the amendment.
Take the company who are currently doing a very good job on the old College of Science buildings, International Contract Cleaners. They are part of the Sisk group, but they are quite a separate, stand alone company whose equity is held in part by the Sisk group. They operate, trade and compete externally and internally with that group, as is increasingly the practice with groups of companies. If the employees of ICC had a dispute, served strike notice in the normal way and put a picket on their headquarters and on their registered offices on the Naas Road, where other companies which are part of the group also have offices, could not a third party seek an injunction to prevent the workers going on strike or taking other action? That is an example of the third party position. It may not be the employer but another person.
Prosecuting the union for damages.
I must confess I am convinced by the argument. My advisers have been told by the Attorney General's Office that it would be very difficult to cut off this third party. It might not arise in many cases, or even at all. We are taking away a major fundamental right of employers and to do that across the board could be unconstitutional. That is the issue. We are taking away the right of a third party, if they have a dispute or an issue with a union on strike, to seek an injunction. At the same time I see the argument Deputy Quinn is making that there could be collusion involving the employer operating the system. I will endeavour to see what can be put in without creating a constitutional problem. I will speak again to the Attorney General and if it can be done I will bring forward an appropriate amendment. I accept the argument.
The Minister should accept it now before he is nobbled.
Is the Minister accepting the amendment?
No, I am not accepting the amendment. Since I have advice to the contrary, I could be opening a constitutional loophole. Deputy Mitchell should not under-estimate what he is doing. Colleagues of his who are expert in company law would be standing up at the first appropriate Question Time after enactment and asking how I could take away the constitutional right of seven-eights of the country to seek injunctions.
With due respect to the lawyers who are very good at creating work for themselves, a little common sense is required. We are not proposing to take away the right of anybody to go to court and seek an injuction, ex parte or otherwise.
That is what would happen.
We are qualifying that right in that they must inform in advance those against whom they are seeking an injunction. The Minister must see that the Constitution is probably being breached by not extending the right to those against whom an injunction is being sought to be represented in court. I cannot see how he could be advised that it is possibly unconstitutional to allow people to be defended in court. It defies common sense. The Minister has a reputation for having common sense — let us see some of it. Let us accept the amendment. If the Attorney General still insists that it will not do, he can bring in a futher amendment on Report Stage. The Minister is giving the impression that he will not accept even one amendment from the Opposition. That is the old Fianna Fáil style. No amendment has any validity unless it comes from them.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 71; Níl, 64.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Briscoe, Ben.
- Browne, John (Wexford).
- Ellis, John.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Haughey, Charles J.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lyons, Denis.
- Martin, Micheál.
- McCreevy, Charlie.
- Burke, Raphael P.
- Callely, Ivor.
- Clohessy, Peadar.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Nolan, M.J.
- Noonan, Michael J.
- (Limerick West).
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Roche, Dick.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Níl
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Bell, Michael.
- Belton, Louis J.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Carey, Donal.
- Connaughton, Paul.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard.
- Farrelly, John V.
- Fennell, Nuala.
- Ferris, Michael.
- Finucane, Michael.
- Flanagan, Charles.
- Foxe, Tom.
- Gilmore, Eamon.
- Gregory, Tony.
- Higgins, Jim.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Enda.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Mitchell, Gay.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- Noonan, Michael. (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor-Quinn, Madeleine
- Timmins, Godfrey.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies J. Higgins and Howlin.
Question declared carried.
Amendment declared lost.
Amendments Nos. 70 and 71 not moved.
I move amendment No. 72:
In page 11, subsection (2), lines 25 and 26, to delete "establishes a fair case" and substitute "believes".
This seems to do no more than have an honest belief on the part of the persons concerned accepted as the test rather than the more onerous requirement to establish a fair case. Where the respondent generally believes that he is acting in contemplation or furtherance of a trade dispute that ought to be sufficient.
Section 19 deals with the granting of injunctions. Section 19 (1) provides that employers may not apply for ex parte injunctions in certain circumstances. There is no doubt but that it is a big restriction. Subsection 19 (2) provides in certain circumstances when there has been notice and the secret ballot has been held, the court shall not grant an injunction where the union side establishes a fair case that it was acting in contemplation or furtherance of a trade dispute.
What we are doing here is placing considerable restrictions on the granting of injunctions. The onus to establish a fair case does provide a reasonable test and that would not be possible if the word "believes" was inserted. In the circumstances, I cannot accept the amendment. All that is required, however, is for the striker or those involved in organising the strike to put forward their case. That is a simple matter. The balance here is clearly with the worker.
Amendment, by leave, withdrawn.
I move amendment No. 73:
In page 11, between lines 44 and 45, to insert the following subsection:
"(6) For the purposes of this section, a trade union shall be deemed to have fulfilled the requirements of section 14, and to have given not less than the notice required by subsections (1) and (2), unless the court is satisfied to the contrary.".
The amendment is self-explanatory. In the interests of saving time I would like to hear the Minister's response.
It is my view that a sweeping provision which assumes compliance is inappropriate for inclusion in legislation. In any event, the legal advice available to me is that an amendment along the lines proposed is not necessary as it would be up to an employer who raised the question in relation to a secret ballot or the giving of notice to satisfy the court that the provisions concerning ballots or notice had not been complied with.
If it is not necessary, would the Minister not consider it as, perhaps, providing a bit of comfort? It is a reassurance that a vexatious seeking of an injunction by an employer or by a third person would not be entertained if they were to claim without providing satisfactory evidence at the time that they were seeking the injunction that the requirements of section 14 in respect of secret balloting had not been properly complied with. It may very well be stating the obvious, but sometimes that has to be done.
That is the case sometimes, but I do not think it is necessary. The employer who raises the question in relation to a secret ballot and the giving of notice to the court under the provisions concerning ballots and notice, would not have complied with what is in the legislation. It is straightforward. It can only be interpreted in that way. I do not think the Deputy's amendment is necessary.
Amendment, by leave, withdrawn.
Section 19 agreed to.
Sections 20 and 21 agreed to.
SECTION 22.
I move amendment No. 74:
In page 13, between lines 5 and 6, to insert the following subsection:
"(2) Where a grant is made under section 15 of the Trade Union Act, 1975, the Minister shall itemise the broad headings of the expenses in respect of which such grant has been paid.".
Effectively what is being sought here is the insertion of a new subsection which would amend the Trade Union Act, 1975. The purpose of the amendment is to require the Minister to be more specific in terms of funds allocated under the relevant section of the Trade Union Act, 1975, which has to do with trade union amalgamations, and itemise in broad terms the headings for the expenses in respect of which the grants have been paid. This, as the House will be able to divine, springs from representations made to me as a result of the amalgamation of my own union with the Federated Workers' Union of Ireland and the fact that £1.4 million in all was paid to assist that amalgamation. I understand that the figure in the budget was £1.27 million. Many people raised their eyes at that amount of money which far exceeded what could have reasonably been expected. If my information is correct I do not think anybody could have raised their eyes more than the Department of Finance.
SIPTU command a lot of clout with the Minister and the Taoiseach who would not run the risk of displeasing that body. Therefore, the money was provided because, of course, SIPTU would be a cornerstone in any new negotiations for a programme for national recovery or a central agreement. Nonetheless, it is important that there should be accountability for public money so disbursed. Like other trade unionists. I would like to know the purpose to which this was devoted.
For some reason, and the House can make up its own mind on this, I seem to be regarded by many members of the new joint union as some kind of ombudsman to whom they can write about various grievances. One takes some of those complaints with a grain of salt because one is accustomed to receiving that type of representation but, generally, the questions raised merit a response. The transport union, in particular, has always been a centralised union and as far as I can see under the new set up the centralisation has been exacerbated. When one takes that with the fact that the rules of amalgamation provide, for instance, that there should be no conference for five years, a top heavy structure, and, in the opinion of many members, make access to the leadership more difficult, one must ask questions. I have received many queries about this.
Of course, this has been exacerbated in the media coverage given to claims of inordinately high salaries being paid to a significant number of people in the leadership. One does not know if the media coverage is accurate but, if it is, it will cause some disquiet among the rank and file of the union. One reaches the point where one must be concerned whether the salaries reported are compatible with the purpose and objectives of the trade union movement. I do not think that leaders of any union, no matter how big, ought to be paid more than, for example, Government Ministers. They ought to be paid a salary commensurate with the very difficult and demanding job they have. One can understand why many of the rank and file who are living on the average industrial wage, or lower, wonder if some of the £1.4 million of public money went to enhance the salaries of a small number of individuals.
I may be alone in the House in believing that, with some honourable exceptions, the disposition of the trade union leadership is very conservative but that is cyclical; it will change. Questions about internal democracy, access to information, how the money of members is spent, accountability of public money put at the disposal of those for the amalgamation, are legitimate. It would be very insensitive on anybody's part in the times in which we live if they were not sensitive to such questions.
In the political arena we have seen how, in cases where the leadership became remote, overly centralised or insensitive to the views of the people or tried to get their fist into the jar of sweets for more than they were entitled, there was a reaction. The question about public accountability is a legitimate one. The purpose of the section is to do no more than provide for the future. One hopes that the process of amalgamation will continue and that in such negotiations there will not be any secrecy about the public money put at the disposal of unions. The Minister has broadened the scope of the Bill to the extent that where an honest attempt is made to merge two unions the expenses incurred will be met. I welcome that positive move but it is important that there should not be any secrecy about these matters.
I welcome the section and the fact that the exceptional circumstances have been removed. It is right that there should be an incentive to amalgamate. All Members agree that we need amalgamations and that they are long overdue. Indeed, the interpretation by the Department of Labour and, more to the point, the Department of Finance up to 1985 in relation to equalising pension entitlements was unnecessarily restrictive. I must say to Deputy Rabbitte that his veiled attack on the merger which resulted in SIPTU was unwarranted.
I did not say that.
Fóir Teoranta are not required by law to break down the amount of money they give to companies. The Comptroller and Auditor General will ensure that everything is above board. I should like to assure the Deputy that there is nobody more rigorous than the officials in the Department of Finance when they seek a break-down of the costs incurred. To suggest that the salaries of the SIPTU officials have in some way been subsidised by the £1.4 million grant is misleading because that money was to meet costs incurred, and was a once-off payment. It cannot be regarded as an ongoing subsidy to a union.
I can only speculate as to Deputy Rabbitte's motives but in my view we should welcome the amalgamation of the country's two largest unions whose history since 1922 has been characterised by extraordinary rivalry and bitterness. I am pleased that the personalities have put their differences aside and that the unions have amalgamated. The one person, one vote structure and the regional structure that have been written into the rules will ensure that the new union will be the most democratic of all unions.
The Minister for Labour was right to give assistance towards the amalgamation of the unions. He was correct in having that figure included in the budget rather than hiding it under a general provision. If that can be seen as the generous hand of the Oireachtas to encourage other unions to do the same, we will have done a positive day's work towards establishing a modern trade union structure here.
I welcome the section. I have always contended that we should be more generous about the funding of trade unions. We have not been as generous as we should in relation to education, training and research. I agree with most of what Deputy Quinn said about the section. Deputy Rabbitte's proposal is not an unreasonable one. It is worthy of consideration.
If there is one thing that has bedevilled industrial relations for many decades it is the multiplicity of trade unions and the structural diversity of our trade union system. Anything that will facilitate amalgamations or mergers is to be welcomed. Therefore, I warmly welcome the improvements in the 1975 Act. Deputy Rabbitte referred to the level of salaries of the officers of SIPTU but I fail to see the relevance of that in the context of the amendment or the section. I would have thought that salaries were a matter for internal decision by a union and that they should have a right to set them.
I wish to reply to this issue so that the record will be clear. Each claim for expenses arising from a trade union merger is, as Deputy Quinn said, examined on its merits. Grants are generally paid in respect of postage, printing, advertising, meetings, conferences, pensions, legal fees and so on. All the moneys paid must be sanctioned by the Department of Finance and the Minister for Labour, unfortunately, does not have discretion in this regard. I am not talking about SIPTU or any other union. The moneys paid out are subject to scrutiny by the Comptroller and Auditor General and all that entails where Members can raise queries on the relevant committee. I do not think a provision along the lines suggested is necessary.
In the 1975 Act all additional moneys had to be classified under a heading of "extraordinary expenditure" but I hope to issue a list for inclusion in this Bill because it is important for people to know what they can claim. Deputy Quinn mentioned the pension provision of the smaller unions and that the reason they will not amalgamate is because some of them have been in existence for 40 years. I totally understand their position and a lenient attitude should be adopted.
There was a lot of money involved in the SIPTU amalgamation but it was the biggest amalgamation since the foundation of the State. Following negotiations in that regard, I had to go to the Department of Finance because it was far bigger than any previous amalgamation. It was then approved at the Cabinet table but, because it could be misinterpreted or misread, I argued for it to be included as a budget provision which would leave it open to the House for a budget debate. Every Member of the House could then raise it as they would not be confined to Question Time.
As it is now 5.30 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That section 22 is hereby agreed to."
Question put and agreed to.
SECTION 23.
Acting Chairman
We now come to amendment No. 75. Amendments Nos. 76 and 77 are related and amendment No. 77a is an alternative to amendment No. 77. Is it agreed that amendments Nos. 75, 76, 77 and 77a will be taken together? Agreed.
I move amendment No. 75:
In page 13, subsection (1), line 30, to delete "psychiatric".
This amendment seeks to delete the word "psychiatric" from the definition in this section. The purpose of the amendment is known to the Minister. As the law currently stands — and as it will stand when this Bill is enacted — certain categories of worker are excluded from the protection of the Bill. The purpose of my amendment is to include one particular category of workers, a very substantial and significant one, whose exclusion is anomalous.
If Members of the House turn their attention to subsection (1) they will see that it defines "worker" for the purpose of the Bill and includes in particular "a psychiatric nurse employed by a health board" but not a series of persons listed from (a) to (f). I do not want to take up the time of the House by explaining why "psychiatric nurse" is included in the legislation.
It is important to say with what one agrees as well as raising questions. I agree with the inclusion of "psychiatric nurse" and I also agree with the amalgamation of the Federated Workers' Union of Ireland and the ITGWU. While agreeing that a psychiatric nurse should be included, a generally trained nurse in any of the disciplines should also be included. If one excises the word "psychiatric" the section reads "including in particular a nurse employed by a health board ...". No argument can be put forward for excluding generally trained nurses from the protection of the Bill. It is wrong to exclude them, it is anachronistic. Generally trained nurses are now joining the conventional traditional trade union type organisation in their thousands in circumstances in which they were not joining up to now. Their own organisation — the Irish Nurses' Organisation — traditionally were a kind of in-house staff association but they have applied and have recently been accepted to membership of the Irish Congress of Trade Unions, which I welcome. The structure and make-up of the INO for the purposes of the affiliation to Congress will make it more and more a conventional trade union. I cannot see why generally trained nurses should not be protected by the Bill, especially since the pressures on them have been exacerbated in recent years. They are at the coal face in the health services and have taken the brunt of the health cuts. They perform a most difficult and demanding job in a tough environment. On Second Stage I described matrons as being the last bastion of autocracy in management and the Minister is in a unique position to know the truth of that statement. It is discriminatory that generally trained nurses do not have recourse to the Labour Court and the commission, it cannot be justified. I ask the Minister to take the opportunity provided by this amendment to bring these nurses within the scope of the Bill.
Before the Minister replies I wish to broaden the scope although the principle remains the same. I agree with what Deputy Rabbitte said but I urge the Minister, in the light of the implications of the changes which will occur vis-à-vis the Labour Relations Commission and the Labour Court — and having regard to the levels of dissatisfaction among some sectors of the public service — not to exclude certain categories from the right of access to the Rights Commissioners.
Time prohibits me from putting it all on the record but I have here a letter from the Local Government and Public Services Union, a union to which the Minister should have particular regard at present since they are the only people who have appended their signature to the next programme for national recovery and have done so with a fair degree of characteristic spirit. Public reward for public courage, or placing one's neck on the block, should be recognised. In the course of a submission prepared by their general secretary they say, on page 3:
The conciliation process is less favourable than that available to workers generally through the Labour Court in that there is no external assistance or facility in seeking to arrive at solutions.
If anything is endeavouring to accommodate the modern culture of a progressive system of industrial relations that is it. To continue the quotation:
A further difficulty is the slowness/duration of procedures. Some delays may be due to either side but even a strict adherence to the time limits within the scheme is unlikely to result in a span of less than a year from serving of claim to finality. The time span on the processing of claims in the Labour Court is a fraction of this.
1.3 This is considerably facilitated by the court's working procedures which keep claims on the move.
1.4 Workers generally have access to a rights commissioner in the circumstances referred to below while those within the ambit of our scheme have no such facility. Subject to the agreement of both parties a rights commissioner may investigate any dispute other than the following:
(a) a dispute connected with rates of pay, hours or time of work, or annual holidays of, a body of workers;
(b) a dispute involving persons who have not access to the Labour Court for the purposes of a trade dispute;
(c) a dispute in relation to which the Labour Court has already made a recommendation.
The conclusions of this LGPSU document are as follows:
2.1 The inadequacy of the existing machinery is resulting in many grievances being left to fester although, whatever the ultimate outcome, access to a third party would in most cases satisfy the position. Employers are increasingly agreeing to ad hoc arrangements but this is generally in situations likely to lead to industrial action.
2.2 The major limitations in the existing machinery may be summarised as follows:
(i) limitation on issues/matters capable of referral to arbitration;
(ii) absence of meaningful exchange/mediation facility at conciliation;
(iii) slowness/duration of procedures.
2.3 In general terms the staff panel seeks dispute resolution machinery no less broad in its scope or flexible in its capacity than that available to workers generally through the Labour Court/rights commissioner. To facilitate in movement in that direction the following specific changes are sought:
(a) amendment to enable third party reference of all issues in dispute;
(b) access to rights commissioner-type facility for appropriate issues;
(c) provision of independent chairperson/facilitator/mediator at conciliation stage.
2.4 The changes sought are made even more urgent by the industrial relations fall-out of the present economic climate and also the proposed improvements in the machinery and facilities available to those workers who have access to the Labour Court as set out in the Industrial Relations Bill, 1989.
There is a very fair case to be made here because — quoting the Minister himself — in all probability we will be back here to amend this Bill. Therefore, we should anticipate a harmonisation and improvement in terms of equal access of workers, no matter who their employer, to some type of conciliation machinery such as rights commissioners. The same document, of which no doubt the Minister has received a copy, contrasts with the position of some categories of workers who are in receipt of similar salaries, some working for voluntary hospitals, some for local authorities/health boards, when the same person with the same skills and on the same pay grade in the dispute can gain access to the Labour Court and rights commissioner while others are bound by the constraints of the conciliation and arbitration scheme. I contend there is a compelling argument for liberalisation in this area.
In regard to section 23 (1) the definition of "worker" is identical to that which permits access to the Labour Court and rights commissioners as at present. The definition of "worker" is much more detailed and restrictive in the general definition used in section 8 for the purposes of a trade dispute. I will not reiterate all of the arguments advanced in relation to psychiatric workers and why this provision is as it is. Deputy Rabbitte was kind enough not to go through it all and I will not either, except to say that the definition of "worker" contained in this section determines those categories of workers who have access to the services of the Labour Court, rights commissioners and the Labour Relations Commission. It effects no change in the existing definition, but merely brings together a definition which is at present spread over a number of Acts. In so far as it tidies up that spread, it is useful but does not cover the point made by Deputies.
The categories of workers excluded from access to the Labour Court and rights commissioners are covered instead by the conciliation and arbitration schemes. The question of providing access to the Labour Court and other services for such categories is one for discussion and agreement between the parties to the various conciliation schemes.
A provision is contained in section 23 (5) to allow the definition of "worker" be amended by order. Therefore it does not require the amendment of legislation which, as Deputy Quinn rightly contended, would present difficulty. In the absence of agreement to the making of an order I am not in a position to effect any amendments to that definition.
Last year when I attended a conference of local government and public service workers this issue was raised with me. I undertook, along with the Department of Finance, to get discussions going on this matter. The Deputies will be familiar with the many arguments advanced, but, of course, there are differing views. For example, some people want dual access, others want sole access; some people are quite happy with the conciliation and arbitration scheme; others want access from the conciliation and arbitration scheme to the Labour Court and — as we observed in this House some years ago — some people would have liked to uphold their conciliation and arbitration rights which would have suited their cause. In a few of these cases I have at least endeavoured to have discussions initiated between the parties involved, but if the different parties agree, then the role of the Minister for Labour in this is that he can ensure such access by way of order. Otherwise it would be a matter for Government approval in individual cases. That is the provision laid down in this Bill which is not cumbersome. I do not mind saying that it would be useful if we could tidy up the present divergence of views. As far as I can, I will endeavour to aid both sides in making some progress in this regard.
I shall confine my comments to amendment No. 75. Deputy Quinn has correctly broadened it beyond that. I am not exactly clear to what extent, if any, the Minister is prepared to take on board what has been said. Just for the record may I correct Deputy Quinn on the very helpful document with which we have been supplied. The document has been issued by the staff panel of the conciliation and arbitration scheme, not by the LGPSU. I was a party to the discussion which led ultimately to the very precise and helpful drafting of this document by Philip Flynn who has contacted all of us on what is a very important matter. If we were just to take it at the level of the rights commissioner service, it is a great pity that the Minister is not more flexible on this. The rights commissioner, as an institution, is very highly regarded by both sides of the divide in industrial relations. Time out of number the rights commissioner facility has resolved seemingly intractable disputes. Of all the grievances and deficiencies in the conciliation and arbitration scheme listed by Mr. Philip Flynn in this analysis, the most hurtful in discriminatory terms in 1990 is the refusal of access to the rights commissioner service of so many categories of public servants.
In my initial remarks I dealt with the exclusion of general trained nurses. In my view the most serious aspect of that is that there is no outside party to which one can have resort in a dispute. Usually, the disputes are minor, individual or particular, but in fact there is no outside body to which one can resort, there is no Solomon of industrial relations, who will listen to both sides of the argument and make a decision, which ironically is not binding in Irish industrial relations but which 98 per cent of the time is accepted as binding by both sides of industry.
We have an opportunity now — and we will not have the opportunity again — to make that service available to the categories of public servants who are currently excluded, which is very regrettable. I must enter a special plea for general trained nurses because one of my areas of responsibility as a trade union official was for the health services. Time out of number when the general trained nurses met with a negative from the matron's office or from the secretary-manager, they could have resort to no other forum, although all other categories of health workers could have a similar grievance and have it processed through the machinery of conciliation and arbitration, and the finding in 98 per cent of cases would be accepted automatically by both management and trade unions. It is a great pity the Minister does not acknowledge the role of the general nurses in our society, because at the end of the day that is what it comes down to. General trained nurses are still required to do the job that is assigned to them, and to ask no questions. It goes back to the old ethos in the hospital, which is presided over by the matron and the general nurses are expected to behave as if they are the extension of the schoolgirls they were. That is entirely wrong. They have the same rights as any other health worker, indeed the Minister knows that better than most and I hope he will accede to the request being made.
I share the view expressed by Deputy Rabbitte about the role of nurses and the quality of the work they do. There is no question but that they are at the coal face and that they do particularly good work. Over many decades they have been known for their vocational commitment, which is quite exceptional. I would have thought, thinking of matron versus nurses relationships, that this is at the individual hospital level and that we cannot do much to influence it.
Of course we can as the Deputy well knows.
I think both Deputies have raised a very important point about a sizeable part of the workforce having access to the Labour Court while a very sizeable proportion do not have the same access, but they do of course, have access to the conciliation and arbitration machinery. There is a lot to be said for the conciliation and arbitration schemes and they have been characterised by a very high level of staff side participation and membership. They have thrown up some very good people for negotiations purposes on the staff side and the machinery generally has shown very considerable resilience over the years even in difficult times.
Having said that, however, a Minister would need across the board agreement or consensus to move on this. Deputy Rabbitte makes a special case for a special category, the general trained nurses. However, I do not think this is the way to approach it as we have tens of thousands of workers who are in the public service conciliation and arbitration scheme, and before a Minister would exercise an order or move on that issue, there should be agreement to move to the Labour Court or to the rights commissioner service. Consensus, obviously, is of the essence.
Essentially I am arguing that I do not see it as appropriate in this debate to move unilaterally in respect of one category of worker for access to the Labour Court or to the rights commissioner service but rather I would encourage the two Deputies, who obviously have considerable knowledge in this area, to, in turn, encourage agreement in the public service if it is their wish to gain access to the Labour Court.
I think I have made it clear that I understand the issues very well. Deputy Rabbitte said that I worked in an organisation for many years where we encountered the same sort of difficulties as nurses and others. I understand the protective way people fight for the conciliation and arbitration scheme. Complications arise when we have dual claims — claims being processed in the Labour Court at one stage, and under the conciliation and arbitration scheme by a different section of the same workforce. It is not easy for the management side either where people are trying to operate both systems. It is very confusing. I know Mr. Philip Flynn's views because I discussed this issue at the annual conference in open debate, and I have discussed it with some deputations from the union since. Indeed I facilitated the setting up of some of these meetings to try to get movement on this issue. I also know the views of the teachers' union on this issue who were in with me over a year ago; and I know the views of some of the public service unions. Deputy Rabbitte and Deputy Quinn know that too. However, there are some discussions with which I am not up-to-date. There has to be an agreement between the workers and the Departments in the case of health boards and local authorities and this legislation can very quickly enact by Order whatever they decide. That is the important point. I cannot — and there is no point in indicating otherwise— implement the rights for a whole section of workers unilaterally.
If I may, I will deal briefly with the issue of the rights commissioners. I have no objection in principle to allowing public servants covered by the conciliation and arbitration scheme to have access to the rights commissioner service, provided there was agreement between the parties to the scheme as I said recently in reply to a question. However, this is a matter for discussion between the Ministers directly concerned. In the absence of agreement I am not in a position to alter the terms and conditions of the negotiating machinery which is at present in place. I have taken account of what the Deputies have said and I will continue, to try to help in the process of clarification, because it is not a straightforward issue.
I understand the constraints the Minister is under in relation to a broad based amendment. I accept that people on both sides have to be consulted; in fact, that goes without saying. However, there is a clear request from the representatives of a very large section of local authority workers and from a larger section of workers in the soon to be merged union, set out in amendment No. 77a and notwithstanding the provisions in the section, they would be entitled to have access to the rights commissioner. As Deputy Rabbitte has already said, the findings of the rights commissioner are not binding on either side, but they have the force of moral authority and their acceptance is quoted by a very high level of acceptance by either side.
We are going to have to come back to this matter on Report Stage. I appreciate that the Minister cannot accept this amendment on the floor of the House because it involves other people such as the Minister for the Environment, the Minister for Finance, probably the Minister for the Marine and the Minister for Agriculture and Food in so far as agricultural advisers are involved. If we are not going to have a Report Stage debate for at least a fortnight, which I understand is the arrangement between the Whips, to facilitate Deputy Mitchell who has been facilitated here all day, I would ask the Minister to get a formal view from the various Departments, notwithstanding their view with regard to the Labour Court which is a different matter, on access to the rights commissioner as a mechanism of quickly resolving internal disputes which would be the source of a lot of personal aggravation and grievance. That would go a long way to improving the climate of industrial relations.
There are many other points to be made on this matter in the period allocated to us, including the role of the Labour Relations Commission. If the Minister is looking for another Programme for National Recovery he should consider areas that do not necessarily cost money and this is one such area where there is evidence of positive support. Access to rights commissioners has been formally requested by a wide category of workers. I would like to think that we would ultimately reach the stage where individual workers, no matter who their employer or what conciliation and arbitration scheme they operate under, have ready access to a rights commissioner if they have a personal grievance. It has been my experience that, instead of going to the trade unions who represent them when people have a grievance, they frequently go to their solicitors because they feel the trade union system is not capable of speedily or effectively representing them. That is manna from heaven for many solicitors who have no experience of industrial relations law, and before long we are embroiled in adversarial court type actions when what is required is access to a rights commissioner.
I accept fully that the Minister cannot unilaterally accept the amendment because of the short notice but, given that there are at least two weeks between now and Report Stage, it is not unreasonable to ask him to get the views of the other Departments involved. If they do not agree with this suggestion, let us put it on the record so that it forms part of the overall debate.
Rather than take up more time, I have no objection to what the Deputy asks.
There is a distinction here. Amendment No. 75 deals with a specific area. Deputy Quinn has proffered his view on the wider question of the excluded categories but my amendment No. 75 relates to the inclusion of a specific category, that is, all nurses, within the scope of this Bill. Can the Minister tell me how he can justify drawing a distinction between a psychiatric nurse and a general trained nurse? In my opinion it is not possible to do so. I do not accept the remarks that have been made about consensus being necessary and the Minister needing time because I know that these discussions have been going on for a very long time.
It is at least three years since the trade union group, under the auspices of the staff side of the conciliation and arbitration scheme, initiated the discussions about the serious deficiencies which are causing such depressed morale in the public service. There is a measure of agreement between both sides of the conciliation and arbitration scheme but time and again the employers' side advances the law as being the obstacle. I do not accept this is something that is being sprung on the Minister. He has been telling us since we started this debate — and I give him all credit for it — about the great pains he has gone to in consulting with all sides. I would respectfully submit that this is also an area on which he could have consulted if he was so minded, because it is a very important area. I do not believe the Minister's advisers are so minded either. I think they would prefer to see general nurses excluded because of some paternalistic view of how the health services ought to be operated.
I have always promised general nurses that if I was ever in a position to espouse their case in this House on this injustice that is being done to them, I would do so. I do not accept that the Minister needs more notice, because it is not as if one was breaking new ground. Nursing is becoming more and more a unitary profession and psychiatric nurses have been included since the fifties. Therefore how can we exclude general nurses? There is no rational argument for doing so. The profession is becoming more and more unified — for example, the whole approach to mental illness has changed enormously, patients who were previously institutionalised are now being located in the community, general trained nurses acquire psychiatric qualifications and vice versa. It simply is not tenable in rational terms to exclude general trained nurses and therefore I would ask the Minister to take this amendment on board.
I will not go through all the detail again but I would repeat to Deputy Rabbitte what I said earlier that categories of workers excluded from access to the Labour Court and the rights commissioners are covered instead by the conciliation and arbitration scheme. The question of providing access to the Labour Court and other services for such categories as the Deputy suggests is one for discussion and agreement between the parties to the various conciliation schemes and not for the Minister for Labour. Whether it is the local authorities or the Department of the Environment who are involved, if they do not agree with the Minister for Finance and with the individuals concerned, I can do nothing.
Deputy Rabbitte mentioned discussions of three years ago. The latest discussions I have had with the Local Government and Public Services Union were at conference time last year and I know they have been involved in discussions since then. The issue here relates to the way people wish to be represented. Some people want to hold on to everything that is good and not move into other areas while others want access to the conciliation and arbitration scheme, the Labour Court and the rights commissioners but I can see great difficulties in that. I was the facilitator of those discussions but I cannot make up people's minds for them. It is a matter for them to decide for themselves.
As Deputy Quinn has asked, I will certainly urge the Departments concerned to facilitate us in this matter. I wrote to them on this issue some months ago and I will follow that up but I cannot give a decision now. Finally, these Departments concede that this Bill is as up to date as it can be in providing for this service. I would ask the parties in dispute on this issue to resolve their differences.
Question put: "That the word proposed to be deleted stand."
The Committee divided: Tá, 70; Níl, 66.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Briscoe, Ben.
- Browne, John (Wexford).
- Burke, Raphael P.
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Haughey, Charles J.
- Hillery, Brian.
- Hilliard, Colm.
- Wilson, John P.
- Woods, Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lyons, Denis.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Nolan, M.J.
- Noonan, Michael J.
- (Limerick West).
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Roche, Dick.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Wyse, Pearse.
Níl
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Bell, Michael.
- Belton, Louis J.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, Richard.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard.
- Farrelly, John V.
- Fennell, Nuala.
- Ferris, Michael.
- Finucane, Michael.
- Flanagan, Charles.
- Gilmore, Eamon.
- Gregory, Tony.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Enda.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Mitchell, Gay.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- Noonan, Michael. (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Timmins, Godfrey.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies McCartan and Sherlock.
Question declared carried.
Amendment declared lost.
Amendment No. 76 not moved.
Is amendment No. 77 being moved? It has already been discussed. It is a matter of putting the question now or not.
On a point of clarification, my understanding of amendment No. 77 is that it is quite distinct in that it relates only to section 35.
The Deputy agreed with the proposal that we take amendments Nos. 75, 76, 77 and 77a together for discussion. That was already agreed by the House, so it remains now just to put the question or——
I accept that. I will return to it on Report Stage.
Amendment No. 77 not moved.
Given that the Minister has assured the House that he will persuade his Government colleagues of the wisdom of our ways we will graciously not move amendment No. 77a.
Amendment No. 77a not moved.
Section 23 agreed to.
SECTION 24.
Amendment No. 78 not moved.
I move amendment No. 79:
In page 14, subsection (3), line 36, after "Minister" to insert "following consultation with bodies representative of employers and trade unions".
It is the essence of good industrial relations that there be prior consultation, and it seems that the Minister himself would want to give the example in this respect by adding in relation to the appointment of members of the commission the words proposed in this amendment. The amendment speaks for itself and I imagine the Minister will have no difficulty in accepting it as it is very unlikely that he could in any event appoint members of the commission without such prior consultation.
The proposed amendment is already covered by paragraphs 2 and 3 of the Fourth Schedule. Paragraph 2 makes provision for consultation by the Minister with representatives of workers and employers before the appointment of the chairman to the commission. Paragraph 3 provides for the six ordinary members of the commission, two of whom will be nominated by workers' organisations, two by employers' organisations and two by the Minister. I think the Deputy can be satisfied.
I am happy.
Amendment, by leave, withdrawn.
Question proposed: "That section 24 stand part of the Bill."
I am assuming passage of this legislation through the House and through the Seanad before the summer recess. What timescale has the Minister in mind for the establishment of the commission? When we come to the Fourth Schedule we can get into the function and the details.
It will be as soon as possible but realistically we are talking of the autumn, about October.
Question put and agreed to.
Section 25 agreed to.
SECTION 26.
Amendment No. 80 in the name of Deputy Jim Mitchell. Deputy, again with your indulgence, amendment No. 81 is consequential and amendment No. 83 is related.
Sir, with your permission, I do not intend to move amendments Nos. 80 to 82 inclusive.
Amendments Nos. 80 to 82, inclusive, not moved.
I move amendment No. 83:
In page 16, between lines 15 and 16, to insert the following subsection:
"(4) Notwithstanding subsections (1) (a) and (3) the Court may investigate a dispute if the parties to the dispute request a court investigation and where a conciliation conference has been held at which the parties made a genuine attempt to resolve the issues in dispute.".
On the investigation of disputes by the court, could the Minister outline in what way he sees the role of the court being altered now that the commission is to be established?
May I ask the Deputy to report progress?
Progress reported; Committee to sit again.
Sitting suspended at 6.30 p.m. and resumed at 7 p.m.