Dáil Éireann díospóireacht -
Wednesday, 12 Nov 2003

Vol. 574 No. 2

Industrial Relations (Amendment) Bill 2003: Second Stage.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. Fahey)

I move: "That the Bill be now read a Second Time."

I am pleased to bring the Industrial Relations (Amendment) Bill 2003 before the House. I propose first of all to summarise the background and context of the Bill, the basic aim of which is to strengthen the industrial relations procedures given effect through the Industrial Relations (Amendment) Act 2001. I will then describe the purpose and reasoning behind each section of the Bill.

The system of industrial relations in Ireland is essentially voluntary in nature. The fundamental approach of successive Governments to industrial relations has been one of voluntarism. There is a consensus among the social partners that the terms and conditions of employment of workers are best determined through the process of voluntary bargaining between employers and workers and between employers' associations and one or more trade unions or staff associations. This approach to industrial relations has served us well over the years. In general, our laws do not try to impose a solution on parties to a trade dispute, but rather are designed to help support the parties in resolving their differences. The State has, in general, confined its role to underpinning voluntarism through the provision of third party industrial relations machinery.

We have a number of dispute resolution services which are at the disposal of workers and employers to assist them in resolving their differences. The Labour Relations Commission alone chairs over 2,000 meetings per year, 80% of which are settled at conciliation. Issues not resolved by the Labour Relations Commission may be referred for investigation to the Labour Court. In 2002, almost 600 cases referred to the Labour Court under industrial relations and other legislation were completed. Despite the fact that the majority of recommendations issued by the court are non-binding, there is an acceptance rate of more than 80% by parties to the disputes.

The Government, however, recognises that there is a need for dispute settling mechanisms in cases where employees wish to be represented by a trade union or accepted body but collective bargaining does not take place. Under Partnership 2000, a high level group comprising representatives from IBEC, the ICTU, the Departments of Finance and Enterprise, Trade and Employment, IDA Ireland and Enterprise Ireland and chaired by the Department of the Taoiseach was set up to devise a mechanism for resolving such disputes. In its final report the group recommended that two distinct procedures be put in place. Its recommendations laid the foundations for the procedures we have in place today.

The first procedure is a voluntary one provided for through the code of practice on voluntary dispute resolution – SI 145 of 2000 – which was prepared by the Labour Relations Commission, in consultation with the ICTU and IBEC, and promulgated by the Tánaiste in May 2000.

In essence, the code of practice provides procedures for the negotiated resolution of these disputes. The process under the existing code of practice for the successful resolution of a dispute can be summarised in four steps. First, the dispute is referred to the Labour Relations Commission, which appoints an officer from its advisory service to assess the issues in dispute. The advisory officer of the Labour Relations Commission works with the parties in an attempt to resolve the issues in dispute. In the event that the issues in dispute are not capable of early resolution by the intervention of the Labour Relations Commission, an agreed cooling-off period is put in place. During the cooling-off period, the commission's advisory service continues to work with the parties in an attempt to resolve any outstanding issues. The commission may engage expert assistance, including the involvement of the ICTU and IBEC, should that prove helpful to the resolution of any differences. If, after the cooling-off period, all issues have been resolved, the Labour Relations Commission disengages. Before disengaging, the commission may make proposals to the parties for the peaceful resolution of any further grievances or disputes. In the event of issues remaining unresolved after the cooling-off period, the Labour Relations Commission makes a written report to the Labour Court on the matter.

The second procedure, a legislated fall-back procedure, was provided for through the Industrial Relations (Amendment) Act 2001. This Act gave new dispute-settling powers to the Labour Court in cases where no arrangements for collective bargaining are in place.

Under the 2001 Act, disputes may be referred unilaterally by an authorised trade union or accepted body to the Labour Court in a case where all of the following circumstances pertain. First, it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures normally used by the parties concerned have failed to resolve the dispute. Second, the employer has failed to observe a provision of the code of practice on voluntary dispute resolution, which I mentioned earlier, or has failed to observe such a provision in good faith.

Third, neither the trade union nor the employees, as the case may be, have acted in a manner which, in the opinion of the court, has frustrated the employer in observing a provision of such code of practice. Fourth, neither the trade union nor the employees, as the case may be, have had recourse to industrial action after the dispute in question was referred to the commission in accordance with the provisions of the code of practice.

If a case satisfies these criteria, it may be investigated by the Labour Court. Such an investigation may result in a recommendation, where appropriate, of the action which should be taken. There may also be a review of all relevant matters which may result in the making of a determination by the Labour Court. A review of the determination by the court may be carried out. It may also be possible to make an application to the Circuit Court for an order directing an employer to carry out the determination or review of the determination. Ultimately, therefore, the 2001 Act provides for the issuing of a binding determination by the Labour Court which is enforceable through the Circuit Court.

The Bill proposes to strengthen the procedures in the 2001 Act in line with commitments in the national agreement, Sustaining Progress. In the negotiations on Sustaining Progress, the trade union and employer organisations agreed that there was a need to enhance the effectiveness of the procedures put in place by the Industrial Relations (Amendment) Act 2001 and the code of practice on voluntary dispute resolution. Section 8.9 of part II of Sustaining Progress sets out seven specific measures which were agreed between the Government and trade union and employer representatives to enhance the effectiveness of existing procedures.

The first measure is the introduction of "an indicative overall timeframe targeting 26 weeks – with provision for up to a maximum of 34 weeks where necessary – for the processing of cases under the dispute resolution code and Act to the point of issuance of a determination, save when an extension is agreed by the parties". This measure sets out the timeframe agreed by the Government and trade union and employer representatives for the completion of cases under an enhanced code of practice on voluntary dispute resolution and the amended legislation. Allowance has been made for the extension of the timeframe from 26 to 34 weeks, if necessary. The introduction of a timeframe will shorten the length of time required to process a case through the code of practice and Labour Court procedures.

The second measure is the amendment of section 2 of the Act to provide that engagement by the court can now take place on the basis of a breach of the timeframes within the code, the exhaustion of the timeframes or the indication at any time by the Labour Relations Commission that it is unable to assist the parties. These provisions shall be substituted for the existing section 2(1)(b), while preserving the remainder of the section. This measure requires changes to the conditions to be met under section 2(1)(b) of the Act of 2001. It will facilitate the transfer of responsibility for cases from the advisory service of the Labour Relations Commission to the Labour Court.

The third measure is the amendment of section 3 of the 2001 Act to allow the court to combine the preliminary and substantive hearings where it considers this to be appropriate. Under section 3, the Labour Court may hold a preliminary hearing to determine whether the conditions set out in section 2 of the Act have been met. This measure will permit the combination of the preliminary hearing with the hearing of the case. However, the Labour Court may still hold a separate preliminary hearing if it so wishes.

The fourth measure is the removal of the provision in the Act which requires the Labour Court to review a determination prior to seeking enforcement of a determination by the Circuit Court. This will be achieved by deleting section 9 and amending section 10 to entitle the trade union or excepted body to apply to the Circuit Court for the enforcement of a determination immediately or on expiry of whatever implementation period is provided for in the determination. This measure was designed to contribute to the speeding up of the processing of cases to facilitate achievement of the agreed timeframes.

The fifth measure is the introduction of a new code which sets out the different types of practice which constitute victimisation arising from an employee's membership or activity on behalf of a trade union or a manager discharging his or her managerial functions, or other employees, drawing, as appropriate, for consideration on relevant definitions in existing codes and legislation and best practice. With this measure it was agreed to introduce a code of practice on victimisation. This code of practice will be applicable only in instances where the code of practice on voluntary dispute resolution has been invoked or where it is intended to invoke it. This code will cover victimisation of trade union members, managers and other employees. Its drafting is the subject of ongoing discussions among the Labour Relations Commission and trade union and employer representatives.

The sixth measure is the amendment of the Act to provide that the Labour Court should have regard to breaches of the anti-victimisation code and, where appropriate, should provide for redress in making its determinations. This measure provides for redress where a breach of the code of practice on victimisation has been established. The decision to provide for redress requires legislative provisions, which are included in the Bill.

The seventh measure is the development of transitional provisions to permit the processing of cases in current disputes where access to the code of practice on dispute resolution as at the date of agreement is not available. This measure provides for the introduction of changes to section 2(1)(d) of the 2001 Act. The section provides one of the four existing conditions which must be complied with before the Labour Court can investigate a case.

The implementation of the measures agreed in Sustaining Progress requires a revised code of practice on voluntary dispute resolution, a code of practice on victimisation and a number of amendments to the Industrial Relations (Amendment) Act 2001. It is also necessary to introduce legislative provisions to provide for a prohibition on victimisation, the processing of complaints of victimisation and, where appropriate, redress.

A new code of practice on voluntary dispute resolution will support the provisions of the Bill. This code of practice has been the subject of discussions among the Labour Relations Commission and trade union and employer representatives. Following these discussions, the Labour Relations Commission prepared an enhanced code of practice on voluntary dispute resolution for my consideration. I will shortly bring forward the necessary statutory instrument under section 42 of the Industrial Relations Act 1990 to give effect to this code of practice.

The enhanced code of practice on voluntary dispute resolution prepared by the Labour Relations Commission sets out the procedures for the effective and expeditious resolution of issues in dispute. A period of six weeks will be provided for the processing of cases under the enhanced code. It is intended that this period will provide for a two week period in which to arrange meetings and commence discussions. The remaining four weeks will be allocated to substantive engagement on the issues in dispute. An advisory officer will be appointed to facilitate proceedings. Accordingly, a dispute which has not been resolved by the Labour Relations Commission within six weeks will be deemed to have been exhausted and the advisory officer will disengage. However, in instances in which real progress is being achieved, the parties may agree a time extension during which the advisory officer will continue to work with them to achieve a resolution. The code also sets out the actions or inaction involved in determining whether a breach of the timeframe has occurred.

As I said earlier, it was agreed to introduce a code of practice on victimisation. This will set out the different types of practice which will constitute victimisation arising from an employee's membership or activity on behalf of a trade union or a manager discharging his or her managerial functions or other employees.

The Bill gives effect to the legislative provisions agreed in Sustaining Progress. Section 1 is a standard section in all Acts. It provides for the interpretation of certain references used later in the Bill and also permits abbreviated references to sections, subsections and other Acts.

Section 2 deletes section 2(1)(b) of the 2001 Act and replaces it with a provision which allows the LRC to investigate a trade dispute if one of three different conditions has been met. These conditions are a breach of the timescales in the amended code of practice on voluntary dispute resolution, the exhaustion of the timescales in the amended code of practice or the receipt of a report from the LRC to the effect that no further efforts by it will advance the resolution of the dispute.

Section 3 replaces section 3 of the 2001 Act, enabling the Labour Court to allocate its resources more efficiently by allowing it to combine preliminary and substantive hearings in a dispute referred to it under section 2(1) of the principal Act, if it considers it appropriate. This section would also have the effect of reducing the length of time taken by the Labour Court to conduct an investigation. Section 4 replaces section 10 of the 2001 Act to enable a trade union or excepted body to appeal to the Circuit Court for the enforcement of a Labour Court determination if an employer has failed to implement its terms. The Labour Court's determination is binding and is enforceable by order of the Circuit Court.

Section 5 provides for the processing of cases which had been referred to the Labour Court under the principal Act at the date of enactment. These cases will be treated, from a procedural perspective, as if they had been referred to the Labour Court under the new legislation. The cases being dealt with under the 2001 Act, as well as any new cases, will benefit from the streamlined procedures contained in this Bill. Section 6 enables the Labour Court to investigate disputes where, at the date of the ratification of Sustaining Progress – 26 March 2003 – access to the Labour Court was not available due to industrial action. This section provides for the processing of cases which were precluded from the procedures of the principal Act because they did not comply with section 2(1)(d) of the Act.

Section 7 enables the Labour Court to give priority to cases referred to it under this Bill, in order to enable it to resolve the dispute within the agreed time frame. Section 8 defines victimisation and allows for acts to be specified in the code of practice on victimisation to be included within the definition of victimisation. A complaint of victimisation may be made in circumstances where there is a trade dispute, in which the code of practice on voluntary dispute resolution has been invoked, or is intended to be invoked, and arises from an employee's membership or activity on behalf of a trade union, a manager discharging his or her managerial functions or other employees.

Section 9 deals with complaints of victimisation and empowers a rights commissioner to hear such a complaint from an employee, trade union or excepted body and to make a decision on the matter. Rights commissioners already hear complaints under 14 different Acts and two sets of regulations and are experienced and well-positioned to adjudicate on the issues involved in any cases which might be taken under this section. This section also provides that a rights commissioner may award compensation, where he or she considers it just and equitable.

Section 10 provides for an appeals mechanism to the Labour Court from a decision of a rights commissioner. Section 11 empowers the Labour Court to take evidence on oath, to administer oaths and to compel a person to attend to give evidence where there is an appeal from a decision of a rights commissioner in a victimisation case, as provided for under section 10. Section 12 allows the Labour Court to refer a question of law arising in an appeal of a rights commissioner's decision under this Bill to the High Court. Also, in regard to an appeal of a rights commissioner's decision under this Bill, this section allows a party to the proceedings before the Labour Court to appeal to the High Court on a point of law only.

Section 13 enables a party to apply to the Circuit Court for an enforcement order of a decision of a rights commissioner or a determination of the Labour Court in respect of a victimisation case, where the decision or determination has not been carried out within a period of six weeks. Section 14 repeals section 9 of the 2001 Act, which provides for a review of a determination by the Labour Court. As I said in regard to section 3, this amendment to the principal Act will facilitate achievement of the overall timeframe and more efficient allocation of Labour Court resources. Section 15 gives the Short Title, collective citation and construction and prescribes that the Bill shall come into operation on such day or days as may be appointed by ministerial order.

The purpose of this Bill is to strengthen the procedures of the existing legislation, as agreed by the trade union and employer representatives. It provides employers and employee representatives with the opportunity to negotiate a solution to industrial disputes in situations where collective bargaining arrangements are not in place. Only if the voluntary process fails will the Labour Court become involved and, as under the principal Act, the court shall not, in its recommendations and determinations, provide for collective bargaining.

I look forward to hearing the views of Members and I commend the Bill to the House.

Mr. Hogan

On behalf of Fine Gael, I welcome this Bill. It is an extension of and amendment to the Industrial Relations Act 2001 and it puts time limits on and gives certainty to many of the procedures and processes of the industrial relations machinery for the resolution of disputes through the various bodies and structures which have been established over the years. The Labour Court, Labour Relations Commission and other mechanisms of arbitration, which have been developed through our managing industrial relations procedures over the years, have worked well. While it might appear from the Minister of State's contribution that the process is cumbersome, the Bill will bring some speed to the resolution of many conflicts by putting time limits on those disputes in a comprehensive and collective way, which will give certainty to all protagonists. There will be a finite time in which they can exhaust all the processes at each stage of an industrial dispute.

People have a right to join a trade union and there has been much debate about whether or not it should be mandatory. However, the bottom line is employment. If a company chooses, for one reason or another and with or without the agreement of its employees, that it does not wish to constitute orderly trade union representation, it should be a matter for the company involved and its employees because employment opportunities have been created for the people engaged in that work. We have a high level of trade union membership and, over the past 20 years, a major contribution has been made to social partnership by employers and employees in conjunction with the State, which has dealt with many of the economic and social issues which have bedevilled us for years.

Since 1987, with the National Economic and Social Council, the partnership approach has worked exceptionally well to bring about greater economic activity, a greater realisation of the problems facing the country and a collective method of dealing with those problems. The spirit of partnership, alongside industrial relations procedures, has led us to the publication of this legislation.

I acknowledge the work which has been done by employers and the ICTU in coming to agreements in order to amend the 2001 Act. We are living in a different era from that in which we lived when partnership began in the 1980s. We have achieved a great deal in terms of economic progress. There has been unsustained progress in the past six or seven years. A great deal of money was available to do the things to which many partnership agreements aspired but did not have the resources to implement. The challenge for social partnership in the years ahead is to set a new agenda of work to meet head on the great challenge of competitiveness which has been drifting in the wrong direction for the past couple of years.

There were great opportunities in the past few years to implement radical major investment in the infrastructural area. Unfortunately, the Government missed that opportunity through lack of leadership, delay in bringing projects to fruition and its failure to tackle the bottlenecks in the economy. These bottlenecks are evident today from the road, rail, broadband and other infrastructural measures needed to improve our competitiveness at a time when we are coming under pressure from eastern and far eastern countries.

We have reached a stage where our national competitiveness is deteriorating rapidly. The various studies carried out by the OECD or the world economic forum show that on a global basis Ireland Inc. is a far less attractive place in terms of its cost base than it was about ten years ago. We have led ourselves into a position of a higher than expected notifiable redundancy rate in the past year which could have been avoided if we tackled in a partnership manner many of the issues concerning research and development investment and infrastructural investment in our economy. We have not sustained the progress of the late 1990s and early years of this century to the extent we could and have frittered away some of the opportunities for economic development.

As far back as December 2001, the Taoiseach and the Tánaiste were made well aware by the National Competitiveness Council of the need to improve our competitiveness. Measures which could have been implemented with the resources available at that time were drawn to the attention of both leaders. We got no leadership from them towards pushing through with the national development plan or with other measures for the economy. We are now playing catch-up relative to our partners in eastern Europe and the Far East.

The national development plan is being cut back radically and I expect that the Estimates being published this week will give us further evidence of the slowdown in many smaller projects. These are important for our towns and cities and are essential for freeing up land opportunities for investment and projects which would provide sustainable investment in the future. Partnership has changed in terms of the work agenda required relative to the late 1980s. Employers and employees, because of the deterioration in our competitiveness, are being hung out to dry due to job insecurity and unnecessary market uncertainty.

This Bill arises from the recent agreement, Sustaining Progress. It was expected to be published some months after the agreement was reached but we only have it in the latter part of 2003. Fine Gael will not hold up the processing of this legislation through the House, to give effect to the principles and the detail the Minister has outlined.

Section 2 of the Bill introduces a new code of practice on dispute resolution which was part of the Bill in 2001. I am curious to know the level of activity on this. How many cases were taken through that process since 2001? Perhaps the Minister will indicate that in his reply. This section also deals with the code of practice which will put a time limit on dispute resolution, between six and 34 weeks. This is a reasonable length of time to come to an agreement. Some disputes are more protected than others. The high profile Pat the Baker case and other such high profile cases were, I suppose, the reason behind the initiation of the 2001 Bill. This machinery will give time limits rather than having protracted negotiations of a never-ending nature and will bring certainty to the process for those involved and concentrate their minds at an earlier stage.

I welcome section 3 which provides that the preliminary and substantive issues which are part of the issue to be resolved will be dealt with in one process. This helps to speed up the process. Far too often we have seen preliminary hearings held but the substantive issues postponed for some time, perhaps to let people concentrate on the issues. The process of dealing with them at the same time will help speed up the process.

Sections 5 and 6 deal with procedural backdating to 26 March. I presume that is in the context of the reaching of the national agreement between employers and employees as part of the Sustaining Progress agreement.

There are some other matters on which I would like a response from the Minister. I would like to know how many cases were taken regarding the codes of practice. Could we also hear the details of the code? The Minister's speech and the legislation refer to codes. We have codes of practice, anti-victimisation codes etc., but we do not see much detail of what is involved. I am sure bullying in the workplace is one of the issues in play with the anti-victimisation code. I suppose the Minister is trying not to put it in legislative terms to give flexibility. If that is the case, could we hear the background and the details of the breaches and the nature of anti-victimisation that have arisen under this code? I want to see some clarity regarding the experience since the amendment Act of 2001, in terms of the codes of practice for resolving disputes and for anti-victimisation behaviour, before Committee Stage. I want to see in practical terms the issues which give cause to some of these disputes. I would like clarity on these vague aspects of the Bill before we reach Committee Stage.

I welcome the legislation. It is the culmination of the experience of the 2001 Act which has thrown up a number of issues that need technical resolution. It will speed up the process of resolving disputes as originally intended in the 2001 Act. This is an improvement to that Act and will give clarity and early resolution to many of the problems that bedevil companies. If disputes drag on they often become more entrenched than needs be the case. Time limits to resolution of disputes will advance the best case scenario for resolution and enhance the industrial relations machinery of the companies involved and the State apparatus.

Mr. Howlin

I welcome the Industrial Relations (Amendment) Bill. In the past 90 years or so, developed societies have progressively tried to develop and promulgate sophisticated systems of bringing about industrial peace through balancing sometimes conflicting and competing demands and requirements of labour and capital of employees and employers. By and large, Ireland has done reasonably well in developing such legislative and structural mechanisms to balance these often competing rights and to provide, in an organised and structured way, for dispute resolution systems.

The Minister's contribution indicated the volume of cases being dealt with by the Labour Relations Commission and the Labour Court, and the degree of success that those mechanisms have, even when their remit is non-binding. We have developed sophisticated systems which the social partners respect and are willing to use and which brought about a large measure of the industrial peace on which much of our recent prosperity was developed. We have, I suppose, made much of the concept of partnership as the basis of our economic success in the past two decades, in particular. We have set out the models of partnership, both at national and local levels, as ones which are almost uniquely designed to suit the needs of Ireland, and we have invited others from abroad to come to look at how those models of partnership work, both at local and national levels. I would counsel, however, that it would be wrong of us to believe that there is no room for significant improvement in labour law or in the progression of sophisticated mechanisms to ensure that partners are fully respected in the role they must play within the economy, and that we cannot learn from the experience of others in progressive law in this area.

This Bill is one more incremental improvement in our law. For that reason I welcome it, although I do not wish, in the course of doing so, to overstate either its contents or significance. Although it is welcome, for all the reasons outlined by the Minister and by Deputy Hogan's initial comment, it is by and large a refinement of mechanisms that were agreed some time ago and that were first enacted in the 2001 Act, which we are focusing on amending in this legislative measure.

The big issue, which is not addressed in this legislation and which I table for the first time for consideration in this debate, is that of trade union recognition. We are skirting around it in this measure and in other measures which have come before this House in international agreements to which we have been party, but we have yet to determine in a real partnership way that the issue of trade union recognition should be provided for on a statutory basis.

I appreciate that this measure before us delivers on the specifics on the agreement reached with the social partners most recently called Sustaining Progress, and, in particular, deals with section 8.9 of that partnership agreement. However, section 8.1 of that agreement states:

The parties to this Agreement note the ongoing debate within the European Union on the development of representation and recognition rights and the potential obligations that may be placed on Member States and on the Institutions of the EU. These are provided for in the European Charter of Fundamental Rights and in various Directives relating to employee rights in respect of such matters as collective redundancies, transfer of undertakings, health and safety, information and consultation rights etc.

Section 8.1 then states, I particularly emphasise the following:

Notwithstanding the following, the trade unions reaffirm their continuing commitment to building on the measures outlined below and to promoting statutory trade union recognition in Ireland.

Although the Industrial Relations (Amendment) Bill is a welcome measure because what flows in the rest of section 8 of Sustaining Progress is largely what is captured in it, the Bill meets neither the requirements set out by the trade union movement for statutory recognition of trade unions, nor, in my view, the mood of the growing international view that that is the right way to go.

The Government still has not arrived at the point of accepting both the need and, probably more importantly, the value of strong trade union recognition legislation, at least not in the 29th Dáil. It is worth noting, as I have indicated and as is specifically referenced in Sustaining Progress, the contents of the European Charter of Fundamental Rights.

The interesting aspect of that charter is that the proposal now being referred to the Intergovernmental Conference to draft a constitution for the new Europe – the original proposal that has come about by the work, on a transnational basis across all the parliaments of Europe, endorsed by the high representatives of the Governments of Europe and submitted to the European Council meeting at Thessaloniki in June last – specifically addresses the issues which we as a Parliament have yet to address and from which we have, to this point, shied away.

In the draft now under consideration for the new constitution of Europe, the Preamble to the section on fundamental rights states:

Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.

The Preamble further states:

To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter.

The charter itself is then written into the draft constitution and Article II-28 of that charter states:

Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interests, to take collective action to defend their interests, including strike action.

It is interesting that a cross-section of the representatives of the peoples of Europe, east and west, north and south, the Parliaments and the Governments, have seen fit to include this thus far in the draft new constitution for Europe. I would be interested to hear the view of the Minister of State, Deputy Fahey, on these matters and, in particular, on the ongoing Intergovernmental Conference where the final text will be nuanced and presumably presented to the peoples of Europe for endorsement – in this State by way of a referendum, probably during the course of the Irish Presidency next year. Do we as a nation, and does our Government, support the fundamental charter and the right of trade union recognition envisaged in the draft constitution presented to the Thessaloniki Council and, if so, what is our difficulty in enshrining it now in our own legislation, rather than forever playing catch-up to legislation of the European Union?

The momentum to proper and full recognition of trade unions is clear. In the Oireachtas, we have already enacted the Protection of Employment Act, which requires employers to inform and consult with workers and their representatives on the issue of redundancies. We will shortly have to address the requirements of the information and consultation directive, which must be transposed into Irish law by March 2005 at the latest. I have already had an initial briefing on the contents of that directive and they are far-reaching for the establishment of consultative workers' groups, and for access to information by workers into the affairs of their own companies.

These are welcome and far-reaching proposals but they are inexorably pushing the requirements to have a representative structure and an organisation in place in a particular direction. New levels of dialogue will be required. There are other mechanisms and directives, including those relating to improvements to company law, that are emanating from Europe. As already stated, these are all creating an inexorable momentum in a single direction, namely, towards having the fullest possible development of real partnership between employees and employers and a requirement, on foot of the complexity of some of these matters, to have a first rate system of organisation which, by and large, can be provided by a structured, professional trade union operating in a sophisticated way.

There is an old argument that trade union recognition would damage our ability to attract foreign investment, especially in the context of our competition with the United Kingdom. The Welsh and Scottish development authorities are often seen as particularly active in the same pond as Ireland in seeking foreign direct investment. It has been argued in the past that for us to enact trade union recognition legislation would place us at a disadvantage in respect of that competition with the United Kingdom. That argument no longer holds water because since 1999, the United Kingdom Industrial Relations Act has provided for trade union recognition. Ireland, in enacting such legislation now, would simply be catching up with the more progressive stance taken some years ago by the United Kingdom.

The legislation to which I refer has not impacted on economic growth or job creation in the UK, for which the years since 1999 have been particularly good. It is difficult to understand, in terms of the momentum, our experience of partnership in this country or of the position in the United Kingdom, why we have shied away from dealing with the issue of trade union recognition in a comprehensive way rather than in the incrementalist way that the measure we are debating and previous legislation in this area reflect.

I was interested by the Minister of State's comment that the approach of successive Governments to industrial relations has been one of voluntarism. That is an interesting concept. I am not sure what the Minister of State means by voluntarism because we have binding legislation and processes with which people are required to deal. While not all references result in binding recommendations, we have created a sophisticated legislative framework within which disputes are arbitrated and, it is hoped, ultimately resolved.

I stated that we have made much of our successful social partnership model. For any such model to succeed, all parties must believe they can gain something of value from it for themselves and their members. However, in light of the number of fundamental disputes that are still ongoing about the right to associate and to be a member of a trade union and have that union recognised, it seems odd that 16 years into a process of full-blooded partnership, such a situation would continue to exist. This single, narrow issue, namely, the right to associate with and be represented by a trade union, is one in respect of which we have not moved beyond the attitudes of the 1913 lockout in Dublin or the 1911 lockout in my native Wexford. In essence, that issue was in dispute during the period to which I refer.

For all our sophistication and our heralding of the issues of partnership and the fact that all the stakeholders are respected within the partnership arrangement, it is a matter of concern that this fundamental issue of trade union recognition continues to be challenged, forcefully, by some high profile companies in this State. For three years, Oxigen, a waste processing company, has refused to recognise SIPTU. If the workers in a particular company wish to be represented by a trade union, it is odd that in the 21st century, their desire could continue to be frustrated, particularly as we vaunt partnership as the road to take and everyone says that they respect the various players within the partnership process.

Fundamental questions need to be asked about public policy in this area. For example, I am interested in the Government's view in respect of the awarding of public contracts. Is it the Government's view that there should be no requirement on companies that are awarded public contracts to recognise trade unions where their workers, in sufficient numbers, demand, request or require representation by a union? Does the Government have a view or a policy on that matter? If the issue of respect for partnership is real, can that be a sustainable position?

I have asked for a statement of Government policy on this matter because of the concern that is being caused. Partnership is a powerful word. It clearly implies working together in a common endeavour. More than that, it requires an element of respect. If one is to be somebody's partner, one must respect him or her. However, there exists a view among a few employers – I have no wish to overstate the case – that they would prefer that trade unions did not exist. If the model for our economic resurgence states that partnership is the key and if the trade unions are respected as essential players in the development of our economic well-being and are seen as a progressive force in society, it is odd that there are people who want them to be squeezed out of existence.

There are those employers that would seek to frustrate the operation of existing legislation and, I have been advised, the legislation we are debating, before it is even enacted, by seeking ways to establish different mechanisms to avoid the implications of its provisions. It seems necessary for us as a society to respect the various pillars on which we claim, assert and are proud to state that our recent prosperity was developed. Equally, if any of the pillars is undermined, our prospects of maintaining our economic well-being will be diminished.

I welcome the legislation. The various sections have been carefully outlined by the Minister of State and they faithfully parallel section 8.9 of Sustaining Progress. In accepting, applauding and facilitating the early enactment of this incrementally good measure, I do not resile from the Labour Party position that respect for partnership and the right of workers to organise, which has been a bedrock of civilised society for at least a century, should be addressed faithfully and comprehensively by this Parliament at an early date. If Ireland argues internationally for the contents of the charter of fundamental rights and the Minister of State with responsibility for European affairs signs up to it in the name of the Government and it is acquiesced in by all Oireachtas Members, it behoves us to bring our European aspirations home and to support the enactment within our jurisdiction of progressive legislation, which respects partnership.

I look forward to Committee Stage and the early enactment of the legislation but, more especially, I look forward to the speedy introduction of more significant legislation relating to trade union recognition.

Mr. Eamon Ryan

I wish to share time with Deputies Morgan and Connolly.

An Ceann Comhairle

Is that agreed? Agreed.

Mr. Eamon Ryan

I refer to Deputy Howlin's comments on Sustaining Progress and how the various pillars involved need to be supported. Under the partnership process, the Government, IBEC and ICTU are increasingly setting the country's agenda. If, for example, the Simon Community, the National Women's Council, CORI, the Society of St. Vincent de Paul or other social bodies had power in the process, legislation would be enacted within six months of an agreement to address their key wishes. However, that does not happen because they do not have a say in the negotiations or about subsequent legislation while the unions and IBEC have a massive say. The Government, through the partnership process, is running our country as an economy rather than a society. That is a flaw in the process and it is about time various parties recognised that and did something to change it.

While community and voluntary bodies are ignored in the process, there is also no environmental pillar, which is a significant reason for the major environmental problems Ireland faces. As Deputy Howlin said, the legislation was taken directly from Sustaining Progress. Increasingly, IBEC, ICTU and Ministers display contempt for the House, with the direction the country will take being decided in the partnership negotiations which are not open or public and do not take into account the variety of interests in our society.

Deputy Howlin referred to the case for union representation and the right set out in the European Convention, which I hope will lead to progress in that area. However, the effect of the primary legislation in the two and a half years since it was enacted should be examined. Up to May 2003, 90 cases were taken through the voluntary process to the Labour Relations Commission but only five full cases and one preliminary case have been taken to the Labour Court under the Act's provisions. Large multinational companies, among which there is a reluctance to embrace union representation, have not been involved. However, small, indigenous companies such as Jet Wash, Bantry Bay Seafoods, Noble Waste, Irish Express Cargo and Sam Hire have engaged in the process. No large multinational company, which can move from one country to another, is involved. Are we legislating on two levels whereby the Act applies to indigenous companies but not to multinational companies? We must be careful and wise to that.

Ireland must also be careful in terms of striking a fine balance between maintaining the voluntary system of recognition and moving towards a legal approach. I acknowledge the benefits of union representation and, while I am critical of the partnership process, union heads have led it for the past ten years and they are responsible for much of the prosperity that has been achieved. Sacrifices by unions established the conditions for our progress. However, another reason for our success was that the partnership process was voluntary and involved the social partners working through to achieve consensus on the different elements being negotiated. There is merit in this consensus approach but I have a slight fear regarding this legislation that the unions, in trying to increase their membership by providing for time and legal constraints and opening the system to direct decisions from the Labour Court, may have provided for a move from a voluntary, consensual approach to a legal approach, which involves referral to the Labour Court, the Circuit Court and the High Court for legal opinion. I am concerned the legislation may lead us in that direction.

Provision is also being made to address the issue of victimisation as well as speeding up the recognition process. It is correct and just that people who seek to achieve union status must be protected from victimisation in the workplace. This is a step in the right direction. It is difficult to envisage how it will work without the implementation of all the codes of practice and it is unfortunate all of them were not in place prior to the debate.

I have two concerns regarding the legislation. The first is that the partnership process is excluding varied interests in society while it gives the groups that have power and influence the ability to form Government opinion and to have legislation enacted within six months. No other groups could achieve this and must wait for years for important legislation. The legislation they seek is not enacted because they do not have the negotiating power of IBEC and ICTU and I am not sure that is a good way to govern a country because it is not clear whether that leads to the prioritisation of legislation or investment. The process has worked because there has been a consensual arrangement.

My second concern regarding the legalisation is we must be careful not to move away from that arrangement. Trade union recognition will be aided tremendously by the European Charter of Fundamental Rights, to which Deputy Howlin referred, and the Green Party will support the Government in adopting and pursuing the charter if it is included in the Constitution, but the Administration should be wary of governing on the basis of what the social partners believe is right. The Government is there to take account of a wide variety of interests in society, but I believe it is not doing so.

Mr. Morgan

I welcome the opportunity to address the Bill. As I have said in the House on previous occasions, the Government is anti-union. That is no surprise since it is presided over by the man responsible for the introduction of the most vicious anti-union legislation on the Statute Book, the Industrial Relations Act 1990.

The Bill implements measures contained in paragraph 8.9 of part II of Sustaining Progress. I wish to make a number of points regarding Sustaining Progress and the social partnership process. Social partnership has represented an attempt by the Government to co-opt those who have been most marginalised. This is especially evident from the inclusion of the community and voluntary pillar. Despite a failure to deliver on demands made by the community and voluntary sectors, their inclusion in the partnership process is being used by the Government to give the appearance of consultation and consensus.

The Government and employers' organisations are making workers bargain for rights which are rightfully theirs as part of the wider social partnership deal. These are not concessions. Employer recognition of unions, compliance with labour legislation and fulfilling statutory redundancy rights are all basic workplace rights. These should not even be on the negotiating table.

Although Sinn Féin will not oppose the Bill, we are disappointed that this opportunity was not used to enhance the rights of workers. Mandate, which rejected the Sustaining Progress agreement, described the measures contained in the agreement on industrial relations as: "simply an exercise in tinkering around the edges of the existing voluntary code of practice which does not represent any form of meaningful change".

There are major problems with industrial relations legislation in this State, especially with certain provisions contained in the Industrial Relations Act 1990 which were designed to crack down on union activity, including section 9 of that Act which makes it almost impossible to take action in defence of an individual worker and the provisions in section 12 of the Act of 1990 which deal with "blacking". These measures especially hit workers employed by anti-union employers and who are fighting for union recognition.

We have seen a stark example in Dublin of the problems to which this State's anti-union industrial relations legislation can give rise. As already referred to by a previous speaker. Oxigen, a private company contracted by local authorities in Dublin to collect waste, refuses to allow SIPTU to organise and to allow its workers to be represented by their union. The failure of the Government to oblige all companies operating in Ireland to recognise by law the unions organised in their companies is an ongoing disgrace. I congratulate the SIPTU workers who took part in industrial action in solidarity with their fellow workers in Oxigen.

Sinn Féin supports the use of the sympathetic strike, which has a long and honourable history in the trade union movement. As the old trade unionist saying has it, an injury to one of us is an injury to all of us. The struggle for union recognition is one in which every member of the trade union movement is involved and which they should support.

In the Oxigen case, a number of extremely serious allegations have been made against the company's practices. Workers claim that employees born outside Ireland are threatened with losing their work permits if they join the union. The company has repeatedly refused to attend the Labour Relations Commission. If only half the allegations of threats, physical intimidation and unsafe work practices carried out by Oxigen in this dispute are true, the company is truly fighting in a dirty manner and SIPTU workers are to be congratulated for standing up to it.

Laws which permit such behaviour are hardly progressive and should be changed immediately. Public contracts should not be awarded to any company which refuses to recognise the trade union movement. This problem would not exist if companies were forced to recognise and deal with unions organised in those companies.

Trade union recognition was also the issue in the Ryanair dispute when baggage handlers were locked out of their jobs for demanding to be represented by SIPTU and Michael O'Leary shipped in scab labour to keep his planes flying. He refused point blank, as Oxigen has done, to avail of industrial relations mechanisms to resolve the dispute. Sympathetic industrial action was also taken in this dispute by other workers willing to stand with their comrades in Ryanair.

The failure of the so-called social partnership process to deliver mandatory union recognition exposes the failure of the process to deliver for workers. It also exposes the fact that the Government's industrial policy is written by IBEC, approved by the Progressive Democrats and rubber-stamped by Fianna Fáil Deputies, some of whom have union cards in their back pockets and should be ashamed of their failure to stand up for the trade union movement.

It is not popular to defend the rights of trade unions to take industrial action. Anyone who remembers the media-led campaign of hate and vilification a number of years ago against Brendan Ogle, a decent man, knows that the Irish media establishment tends to side with management and against workers at every opportunity. Industrial relations legislation in this country has hamstrung the ability of the Irish trade union movement to mobilise and fight on behalf of its workers.

Sustaining Progress does nothing for the disadvantaged and the low-paid. Those organisations who work with the most disadvantaged in our society have consequently rejected the deal, seeing it for what it is – nothing more than a pay deal on which some, such as Fine Gael, would encourage the Government to renege. Sustaining Progress has been rejected by the St. Vincent de Paul Society, the Simon Community of Ireland, the National Women's Council of Ireland and the Community Workers Co-operative. This vague document commits no new resources to addressing poverty and social exclusion. How can the Government continue to call this social partnership? Where are the specifics?

The Simon Community rejected Sustaining Progress on the basis that it does nothing for the homeless and contains no meaningful commitments for people who are living in poverty. The 10,000 houses committed in the agreement will not be targeted at those most in need of housing. The Minister with responsibility for housing has suggested that the method by which people will acquire houses under this scheme will involve a lottery. Perhaps he envisages a system similar to "Telly Bingo" on a Saturday night.

So-called social partnership is being used to facilitate the privatisation of essential services in this State. Privatisation of public utilities is central to the right-wing ideology of the Fianna Fáil-Progressive Democrats Government. It is also notable that privatisation has been a feature of the period since the adoption of the social partnership model of industrial relations. The dismantling of core public services such as CIE, Aer Rianta and refuse collection services throughout the State will take years to reverse. The sooner we halt this process the better. Although Sinn Féin supports the Bill, we believe the State has a long way to go in terms of real rights for workers and trade unionists.

Mr. Connolly

I am not overly enthusiastic about this Bill which appears to be somewhat like the curate's egg – good in spots. Commitments in Sustaining Progress with reference to the effectiveness of procedures for dispute resolution and processing claims have made this legislation necessary. Social partnership has been the essential ingredient in the success of previous agreements such as the Programme for National Recovery in 1987, the Programme for Economic and Social Progress from 1990, Partnership 2000 from 1997 to 2000, the Programme for Prosperity and Fairness from 2000 to 2003 and, at present, Sustaining Progress which will expire in 2005.

Such programmes have played no small role in the transformation of every sector of the economy from the bleak prospects of the mid-1980s to the current state of the post-tiger economy, which is still comparatively healthy. However, in the course of the negotiations between the social partners, leading to the adoption of Sustaining Progress, the trade union negotiators sought significant amendments to the previous industrial relations Act, including mandatory trade union recognition. The Bill would incorporate some improvements, but the key demand of the trade unions to have the legal right to represent members where they choose has still not been met.

This right has still not been addressed in the new Bill and is still an essential trade union demand. Although the Bill is an improvement on what has gone before, it fails to meet the concerns of trade union members regarding recognition of their union and their right to choose to be represented by a trade union. The legislation has improved to the extent that it removes opportunities for employers to frustrate the process because there are very tight timeframes involved. If employers are not using the process meaningfully, trade unions will be able to call a halt and proceed directly to the Labour Court for a determination of their grievance. In the event of a dispute being referred to the Labour Relations Commission and the LRC advising the Labour Court of its inability to achieve a resolution of the particular dispute, the trade union may refer the dispute to the Circuit Court.

It is still a fact in Irish industrial relations that about 70% of companies in the private sector are not unionised, particularly in the high-tech sector, where workers do not have the right to be represented by a trade union. Some of those companies have an anti-union ethos but others do not come under pressure to unionise their employees and much of this is down to fair-weather workers. When conditions are fine, bonuses are awarded and wage packets are full, they are happy enough to contribute nothing to a trade union, but they are the first people to run to a trade union if there is a danger of redundancy. It is not always the company's fault that a workforce is not unionised, although some of them have an anti-union ethos.

Public authority money is being doled out to companies which do not recognise unions, and Deputies Howlin and Morgan mentioned some of those companies. Companies do not want to allow unions in because they then have to give workers their full rights and entitlements. It is one of the legacies of the Celtic tiger era that the level of unionisation has diminished in inverse proportion to the growth of these high-tech companies, in some of which a minimal degree of union recognition is permitted.

One issue raised by the Bill is what constitutes collective bargaining and who decides if collective bargaining has taken place. The Bill includes a provision permitting trade unions to process claims on behalf of their members when collective bargaining does not take place but the Bill lacks some understanding of what collective bargaining means. Trade unions are not seeking a definition of collective bargaining to be incorporated in the Bill as this would cause considerable constitutional problems in relation to freedom of association, disassociation etc. Rather than having a definition of collective bargaining in the Bill, trade unions want the Labour Court to have the authority to make the final decision regarding whether collective bargaining would take place.

It frequently happens that an employer who wants no truck with unions will arrange his own version of collective bargaining with a two-bit collection of his own lackeys by bringing them out to dinner and buying them a few pints afterwards. He knows he will have them again for their next set of talks when they may negotiate about the colour of the wall, whether it needs a coat of paint or what colour that should be. That is their interpretation of collective bargaining.

It is vitally important to avoid a situation where this type of arrangement could be represented as collective bargaining. Trade unions require a situation where the Labour Court can determine if collective bargaining can take place, as it is the competent body to so decide. It is like the elephant test, one knows an elephant when one sees it and the Labour Court would recognise collective bargaining if it sees it. Rather than having a definition of collective bargaining, it is necessary to have a clear understanding of how it is decided whether collective bargaining takes place. The Minister should give this matter serious consideration and address these concerns with amendments to the Bill.

There is also no definition included in the Bill of an "employee", despite the fact that it mentions "employee" several times. Normally in industrial relations the term used to describe an employee is "worker", which has been the case with previous legislation, but there is also the need to define what exactly is a "worker". Trade unions would say that "employee" means "worker", and an employee should be defined in the same terms as a worker in other legislation. An "employee" has previously never been defined anywhere, and this represents a new concept in law since that term has not been used anywhere else.

I will now move on to the better part of the curate's egg. I compliment the Minister on his foresight in including a provision to protect people from being victimised, which is an extremely important part of the legislation, and I support his initiative in providing a very strong definition of victimisation that includes instances of bullying, harassment and employers leaning on people who seek to promote unions in the workplace. Other welcome aspects of the Bill are the provision that the LRC develop a code of practice on victimisation and the specific provisions to ban outright the victimisation of employees in certain circumstances.

The Bill also provides that where a trade union intends to refer or has referred a dispute to the Labour Court, no employee may be victimised on account of his or her membership or otherwise of a trade union or any union activity. There is also provision for a complaint of victimisation to be made to a rights commissioner up to six months after the alleged incidents. The rights commissioner may investigate and issue a determination, awarding up to two years' remuneration as compensation.

The section of the Bill on victimisation represents a major advance in industrial relations terms. However, the Bill fails to adequately address the fundamental and constitutional right of a person to be represented by a trade union, which is regrettable.

Mr. Kelly

This Bill owes its provenance to commitments made in the latest social partnership agreement, Sustaining Progress, the latest agreement in a line going back to the Programme for National Recovery in 1987. The overwhelming majority of people concur that this series of partnership agreements has made a massive contribution to our economic and social development since then. The international downturn, which shows signs of ending, may have constrained our progress in recent years, but when we consider the mass emigration prevalent in 1987, the Self Aid concerts and the dole queues which were only matched by the queues for green cards, we can safely say that partnership has served us well and we continue to reap the benefits today.

We need to remind ourselves of the overall industrial harmony which has persisted since 1987. With the passage of time, there are people who do not remember that an industrial accord was one of the pillars on which our progress was built. By concentrating on partnership and avoiding the appalling, dogmatic politics that characterised the United Kingdom in the 1980s, we brought all the sectors of our society forward together, and sterile ideology, spuriously disguised as conviction, was rejected by the Irish people. Partnership and consensus were the way forward.

The whole partnership process has been particularly associated with the Taoiseach. As Minister for Labour from 1987 to 1991 we can safely say that no other Minister made such a valuable contribution to industrial harmony. He became synonymous with the consensus approach that sought to heal differences and bring people forward together in a constructive manner.

Mr. Broughan

It took him seven years to introduce this legislation.

Mr. Kelly

A Bill on industrial relations affords us the opportunity to consider the broader aspect of employer-employee relations and take an overview on the state of play. The issue of industrial relations has been in the news recently. The number of working days lost in the first two quarters of this year exceeded by 50% the number of working days lost in the whole of last year. Admittedly, 2002 was an exceptionally good year in terms of industrial relations. CSO figures on working days lost going back to 1995 indicate that 2002 was the best of those eight years and it may have been a 30 year low in that regard. Incredibly, we lost ten times as many working days in 1999 as we did in 2002. Industrial action in the public sector was the principal cause of working days lost thus far in 2003 with the public health doctors and clerical staff in the Department of Agriculture and Food making up the bulk of the 32,000 days lost.

It appears that more than 80% of disputes in recent years were in the public sector. The reaction of the social partners to these developments was interesting, with the Irish Congress of Trade Unions, concentrating on industrial peace within the private sector, saying that this demonstrated how the partnership approach between employer and employee was effective. IBEC concentrated on the public sector saying that the figures from the Central Statistics Office were disappointing.

The public sector has always been the focus of much comment because of benchmarking in recent months. I was glad to note that the Minister for Finance and the public service made it explicit in discussions with the social partners that payment of benchmarking awards was contingent not only on public service modernisation but on the commitments in the agreement to industrial relations peace and stability. All the previous partnership agreements contained industrial peace clauses but the provisions in Sustaining Progress were reinforced and underlined to a much greater extent than previously. Everybody involved knows that industrial relations stability is an essential requirement and must be delivered. This is for what the Government and the public sector unions signed up. Whatever about difficulties in measuring the achievement of modernisation targets, there is no difficulty in establishing whether a "no industrial action" target has been met. The Minister referred to the system of industrial relations in Ireland as being essentially voluntary in nature.

The Government has always shared the consensus with the social partners that the terms and conditions of employment of workers are best determined through voluntary bargaining procedures between employers and employees. Clearly, this attitude to industrial relations has served us well. The reluctance of the Government and law makers to indulge in a temptation to impose solutions is to be welcomed. It is a good practice that we continue, in so far as possible, to facilitate and provide solid foundations for conflict resolution. In 2002, a year in which the number of industrial disputes, as recorded by the Central Statistics Office, and the number of days lost to disputes hit a 30 year low, referrals to the Labour Court nevertheless increased by 6% as compared to the previous year. Since 2000, total referrals to the Labour Court have increased by more than 20%. The court completed 13% more cases in 2002 than in 2001. Public sector organisations, especially in the health and transport sectors, accounted for more than a quarter of industrial relations cases completed during the year.

In his foreword to the Labour Court 2002 annual report, the chairman of the court, Mr. Finbarr Flood, referred to the re-emergence of the revolving door phenomenon. This occurs where parties in dispute fail to acknowledge the role of the court as court of last resort and use it as a staging post rather than the last step in the dispute resolution process. The court, on many occasions, has expressed its concern, which I share, that this practice damages the operation of the industrial relations procedures generally.

This is the background against which we must examine this Bill. This is not the first employee related legislation to come out of Sustaining Progress. Earlier this year the Redundancy Payments Act provided for a doubling and, in some cases, a quadrupling of statutory entitlements in this area. The Government and the Tánaiste are to be congratulated on the speedy dispatch of that legislation. The Minister of State, Deputy Fahey, who is piloting this legislation through the House has also acted to give equal rights to fixed contract workers.

This legislation is not high profile. Its publication in July did not stir any leader writers to great heights. It appears to have received scant attention among the media. It is possible, given the inclination of the media to focus on bad news, that this is a positive development. The absence of major industrial disputes means that this Bill, one of the motivations of which is to enhance existing dispute resolution measures, is unlikely to generate much coverage, yet this is another significant Bill and the relative unanimity we can expect in this House should not diminish from the fact that it is more evidence of the success of the partnership process.

The Industrial Relations (Amendment) Act 2001 and the Code of Practice on Voluntary Dispute Resolution instigated a new system more than two years ago to resolve issues in disputes where there were no existing arrangements for collective bargaining. However, there has been a considerable degree of dissatisfaction and irritation with these measures due to the lack of a timeframe for dispute resolution within the existing code of practice. There is also frustration that to refer a dispute to the Labour Court, the onus is placed on a union or excepted body to show that the employer had failed to act in good faith.

There is discontent at the length of time taken to process cases through the Labour Court before obtaining legally enforceable Circuit Court orders. Accordingly, this new legislation will enable the Labour Court to examine cases where the specific timeframe, to be set out in the new code of practice on voluntary dispute resolution, has been exceeded. It will also enable the Labour Court to act when the Labour Relations Commission has signalled that no further work on its part will assist settlement of the dispute. To facilitate this, the Labour Court will be able to link preliminary hearings and substantive hearings where it considers it the correct procedure.

The Bill will put in place further intermediary arrangements to deal with the processing of cases, which at the date of enactment are referred to the Labour Court. It also enables procedures for the Labour Court to investigate a dispute where access to the court was not obtainable because of industrial action at, or before, the ratification of the latest partnership agreement, Sustaining Progress.

Once the Labour Court has made a judgment, this legislation will allow a trade union or accepted body to apply to the Circuit Court to ensure that such a judgment is enforced. The waiting period of at least three months and the review of the determination by the Labour Court will no longer be applicable.

I welcome the provision in the Bill that forbids any victimisation of employees arising from membership, or activity on behalf, of a trade union, a manager discharging his or her managerial functions, or from disputes relating to trade union recognition. The Bill also puts in place procedures for hearing complaints of victimisation and these are to be welcomed.

We all accept that common sense must prevail. No one will dispute that social partnership has been, is and will always be successful. In a modern economy, it is only proper that people sit down together to air their differences and come to a consensus. One never gets everything one wants in life. One has to take into consideration other outlooks and ideas. Together, we must all work for the betterment of our fellow citizens and the good of the country. We are a great country and to remain so, we should maintain social partnership and move forward to take our place among the nations of the world.

I welcome the Bill and I commend the social partners for agreeing to its provisions.

Mr. Connaughton

I welcome the Bill. Although, as Deputy Kelly, said it is not earth-shattering, it is important. One of the centrepieces in our economic progress over the past nine years is in the inflow of industrial funds into the economy. Over recent years, the number of days lost through strikes has been relatively low. The year 2002 was a particularly good one, though this year will not be nearly as good. However, the overall pattern has been going in the right direction. This is due to the social partnership agreements of recent years. There has to be a level of trust and civility between workers and management. At the basic levels of industrial relations – in factories or other services – if there is not a degree of good sense and trust, no matter how the national pattern stands, one will have problems of bitterness and prejudice. However, I hope we are getting over this in our economy. What the Minister of State has introduced in this legislation is another way of fine-tuning to ensure that when workforces have real or perceived problems, they will have the opportunity to put them right.

I accept the concept of partnership. Whether it is as good as some people say, it is certainly better than the alternative that others propose in breaking it up. We have IBEC and the unions on opposite sides with the various pillars in between. It is designed to ensure that all facets of society are connected to the negotiating table in some way, maybe not in the first league, but in the second.

However, I have a bee in my bonnet about one aspect of the partnership arrangement. I cannot understand why one half of this House is disenfranchised in the negotiations. The Opposition has no say whatsoever in the national partnership agreements, yet the Opposition, regardless of party, is always directly elected by the people. I cannot understand why there is no mechanism to include the combined Opposition in the negotiations given that every other sector of society gets the chance. If there is a good reason for it, I have never seen it. It has never been adequately explained to me as to why this is the case. Naturally, in the negotiations there are the unions, employers, the Government, the social pillars and the farming community. However, the Opposition is not included and has no direct input, unless through debate in the House which is not real negotiation. Some day, someone might explain why this is the case.

I listened to Deputy Howlin's contribution to the debate, particularly on union recognition. I cannot say I am an expert in this field. However, in my experience of dealing with the limited number of disputes there have been in my constituency of Galway East during my time in the House, it seems to make sense to have well organised union representation together with a management that understands how the system works. In many instances it means that there is a better prospect of making progress than if the workers are not unionised.

However, I have had dealings with a number of overseas companies which for various reasons do not want a unionised workforce. I find it difficult to accept that the Government would place a statutory obligation on a company like that, especially given that a huge number of the workers themselves do not want it. It would be different if the entire workforce wanted it. In such cases, the jobs created and revenue generated in the area the factory was located would come down to a question between the workers and the management and I could not see a role for the Government at that level as it could not be policed. If they believed they would be obliged to have a unionised workforce against their will, many overseas enterprises would go to a part of the world without such obligation. On the other hand, there is obviously considerable room for manipulation, victimisation, etc. in places of work that are not unionised.

I often marvel at the amount of time and interest ordinary shop stewards put into their work. Theirs is not exactly an exciting position to hold. Their role goes almost unnoticed. They are always at the butt end of every problem. Much of the time even their own workers do not like them. They certainly filter much of the trouble that could become significant and eventually go to the Labour Court. They do much of that locally. Their contribution is well noted. They are an integral part of the system and perform a great duty. We should not forget that.

I hear nothing but the highest praise for the Labour Relations Commission. It is not so much its public profile, but its ability to intervene on the basis that, following contact having been made by either side, one of its officers can have serious negotiations that are not binding on either party and that either can simply fall away as if it had never happened. I know of several would-be strikes that were avoided because of that system.

I can understand why the Minister said there were more than 2,000 meetings chaired by the Labour Relations Commission last year. This represents 40 meetings per week, which is a huge number for a population of our size. As a first point of contact the Labour Relations Commission is extremely important. All the human resource managers and trade unionists I know have great time for the credibility of the commission. It is seen as an honest broker. As long as it can maintain that ethos and image, the business of labour relations is in good hands. The Minister stated that more than 600 cases were handled in the Labour Court. Despite the fact that the outcomes were not binding on either party, between 70% and 80% had favourable results.

This Bill fine-tunes the 2001 Act. While I can understand how many of the procedures the Minister outlined could be very useful, I will not speak about them because I do not pretend to know their technical aspects. Ultimately it is worth having something that will speed up the process and be seen to give both parties a fair crack of the whip and, most importantly, to balance the cooling-off period which is hugely important when both sides are at loggerheads.

When a potential strike arises people react entirely differently than normal. It is important to accept that people will say and do things they would not normally dream of saying or doing in the heat of the moment. It is a bit like a general election among politicians. Against that background it is important to have cool heads, clearly defined procedures that can be trusted and credibility. While the system proposed in the Bill will not solve all the problems, it will go a long way towards addressing many of them. It is good to see that this has been agreed by all the stakeholders involved, which probably explains why there is no great media interest in the Bill.

The legislation deals with victimisation. When summing up, will the Minister indicate how this part of the Bill ties in with the Equality Authority whose remit also covers victimisation? The authority states that it is unlawful to penalise an employee for taking action pursued through the enforcement of the legislation, for example, by referring an equality claim or giving evidence in proceedings under equality legislation. Is there a connection between this and the Bill as there appears to be some overlap? I understand the intention of the Bill. No employee or manager should be victimised for bringing a claim or doing something a company does not like. I do not know how this will be policed. While I imagine the definition of victimisation is very broad, I assume it is not much broader than the Minister outlined in his opening statement. Will the Minister of State indicate when he is summing up how this links in with the Equality Authority? This encompasses a huge area, as seen from the results of various court cases.

I assume that "victimisation" in this legislation encompasses bullying in the workforce. This is another major problem. During my many years as a TD, no one ever came to me about bullying in the workforce until relatively recently. Over the past two or three years, however, I have met a substantial number of people who perceived that they were being bullied at work. I am not a professional in this area, but it is significant that, for many people, even those who spend many years in the same employment because they have no alternative, it is sheer hell. I do not know whether this can be legislated for, but a Minister who does something about it will make a real contribution. The anxiety, fear and pressure that bullying in the workforce brings on people is not generally realised. The strange aspect is that many of those who come to me regarding their experiences are not meek. Some of them are in middle management. It is hugely important that the legislation has something to say on the issue.

There are disputes that amaze me. There was one in the Department of Agriculture and Food earlier this year and I could never understand how it began. It involved district veterinary officers, but not throughout the country. That was unusual. If I recall correctly, only three or four were in dispute. It played havoc, certainly with County Galway, and continues to do so. One hopes that, for their part, unions can bring some pressure to bear to ensure that, if a strike is pending, it should be widespread. One of the aspects of the strike to which I referred was that, had it been a national dispute from day one, it would have been solved much more quickly. It was more difficult to solve because it was regional in scope. I assume the union had great trouble with it. The farming community suffered greatly as a result. I hope that type of contingency is covered in the Bill.

Mr. Murphy

I welcome the Bill. It is timely and sensible and I am sure it will draw support from all sides of the House. The role of the Labour Court and the Labour Relations Commission have been crucial in maintaining the social partnership model. Dispute resolution has been the cornerstone by which Ireland has avoided the painful and economically damaging strikes that were the hallmark of the 1980s. My party has a particular interest in the fact that it has also been the mechanism through which a degree of social justice has been achieved. At times of high economic growth, it is often forgotten that people are behind the economic statistics, and the need to balance the economic progress with industrial peace must always be stressed. Any extension of the Labour Court's dispute settling powers can only be welcomed by both trade unions and business.

My party has been critical of late of certain aspects of the social partnership model. Next year, benchmarking awards will cost the State over €1 billion, which will not result in an improvement in frontline services. It will not mean an extra hospital bed, teacher or garda. With the publication of Estimates tomorrow, that €1 billion will mean stealth taxes and local government charges that will hit the poorest citizens. It will mean services will not only be restricted but cut back. Throughout the debate on benchmarking, Fine Gael made the point that it was not primarily the salary scale that was disaffecting civil and public servants but the lack of meritocracy and reward for initiative, the stultifying focus on seniority instead of talent and the grinding inability of the structures to change.

Pay scales in the civil and public service need to be brought up to scratch, but only against the backdrop of a changed and invigorated public service. Throwing money at the problem of frustrated, unrecognised and unrewarded State workers is no solution. Anyone working in the dispute resolution process would agree with this because it is there that the lack of proper mechanisms to reward and respect workers and the subsequent frustration that can flow is displayed. It is there that managers vent their frustration with the workforce they feel is not pulling its weight. Leaving aside the merits of these arguments, we can surely learn that the need for a thought-out, nuanced approach to industrial relations is the way forward.

The Bill deals with those outside social partnership. It is good to be reminded that many workers are not covered by Sustaining Progress and, when faced with industrial problems, must make their own way through the jungle of employer-employee relations. The Bill will cut through that jungle and is a tribute to those who drafted it, if only for this reason.

This Bill is for those who have been left behind. It is for the mechanic who works in a small garage or the secretary who works in a small or medium-sized enterprise. Ultimately, it is for those who would never go on strike or who, up to now, would never have dreamed of tackling a real or perceived problem in the workplace. My party welcomes the establishment of the two new codes of practice which will smooth the path to industrial peace and benefit both sides in a dispute. The Bill is good law and I look forward to its completion and passage through the Oireachtas.

There is a growing section of the workforce, however, that the Bill will not help, namely, immigrant workers. I have stressed this repeatedly. They will not use these mechanisms because of the fear of losing their jobs and, as a consequence, the right to work in this country.

The current work permit scheme unjustly ties the migrant worker to one employer. Work permit holders do not enjoy the flexibility to change jobs within their employment sector and thus cannot move from one employer to another, should they choose to do so. This is an unfair system which makes the employee over-reliant on the employer. It means they cannot be more selective about issues such as pay and general working conditions.

The current work permit system allows unscrupulous employers opportunities to abuse procedures and hire cheap labour to work in often scandalous conditions. These have included illegal deductions from wages, being expected to work outside the terms of the original contract and for longer hours than stipulated in their terms of employment. For them the work permit system has failed.

The scheme adds to the behind-closed-doors nature of the work. Their employers apply for and hold their permits, creating an imbalance and a potentially explosive relationship between employer and employee. The situation faced by work permit holders contrasts extremely negatively with the superior rights enjoyed by those who hold work visas. They have the right to change jobs within their profession. The imbalance between the rights of work permit holders and their work visa counterparts needs to be clearly assessed and, if necessary, altered to ensure a fairer system for migrant workers.

Legislation is also required to state more clearly the mutual rights and obligations that exist between employers and non-national workers. Many migrant workers remain unclear as to their legal entitlements and rights. Once such rights and obligations are clearly defined, both parties will be aware of their rights and protections will become more enshrined, thus reducing the threat of exploitation. It is only in these circumstances that work permit holders will avail of the provisions in the Bill to protect their rights and improve their working conditions. It is only when this change is made that the Bill will benefit the entire workforce.

Mr. Broughan

I warmly welcome the Industrial Relations (Amendment) Bill 2003 and commend the Minister for bringing it before the House. It has taken almost seven years, since the 1997 general election when some vague commitments were made by the Taoiseach in regard to trade union recognition, to get to this stage via the welcome code of practice in 2000 and the Industrial Relations (Amendment) Bill 2001. We are inching closer to having the type of rights-based system, in terms of trade union representation, which most people would regard as a hallmark of a modern democracy.

I congratulate the leadership of the trade union movement, in particular Mr. Jack O'Connor, president, and Mr. Joe O'Flynn of SIPTU and the general secretary of the Communications Workers Union, Mr. Con Scanlon, who, like the others to whom I referred, has a long-standing and profound interest in the mechanisms whereby trade union recognition can be made a basic right for every worker in the State. Many other trade union leaders such as Mr. Peter McLoone of IMPACT, among others, also contributed over the years towards this debate.

I received strong support from their predecessors in the trade union movement in 1998 when I introduced a comprehensive trade union recognition Bill on behalf of the Labour Party. It was, unfortunately, rejected by the Minister, Deputy Harney, and defeated by the Government parties. I received important advice at that time from Mr. Jimmy Sommers and Mr. John McDonnell of SIPTU, in particular, and also from Mr. Brendan Hayes of SIPTU who is still a senior official. Mr. David Begg of ICTU has also had a long-standing and deep interest in this matter.

I welcome the fact that we have reached an advanced position on the type of rights that all workers should have. I commend the Minister in particular—

Acting Chairman (Cecilia Keaveney)

I draw the Deputy's attention to the fact that we are not supposed to pay tribute by name to a person outside the House or to any official as other Members may be of a contrary view.

Mr. Broughan

Yes. The Bill has had a long gestation period. It builds on the 2001 Act and the regulations from 2000. In particular, I welcome the changes to the time conditions the Minister is bringing forward on how a matter can be processed before the Labour Relations Commission and the Labour Court. I also welcome sections 8 and 9 regarding victimisation. Brave workers in so many companies in the private sector who have had the courage, integrity and determination to try to establish a trade union branch to professionally represent them have in many instances been viciously victimised and discriminated against. It is important that at last we have a mechanism which will recognise this.

As I said to the Taoiseach yesterday, while we sit on these comfortable benches, there are still many examples of where the basic right of professional representation by trade union officials is denied to workers. I called his attention to an example in my constituency of the Oxigen waste management company at Clonshaugh, Dublin 17, where over the past four weeks senior workers have been demonstrating outside that plant because they are denied the fundamental right to belong to a trade union.

I understand that, when the recent reorganisation of waste management took place in Dublin City Council and the other county councils in the Dublin region, it was agreed that the contracts which would be given to new sub-contractors – in this case for a green waste disposal system mainly for newspapers, cardboard and tins – would be awarded only to companies that recognised trade unions and were prepared to allow professional representation to their workers. The Dublin city manager, Mr. John Fitzgerald, Fingal county manager, Mr. Willie Soffe, and others have broken that solemn commitment. They are doing business with a blatantly anti-trade union company, which is what the Oxigen company is.

Non-national workers are brought in to run a service under conditions and wage rates that Irish workers would not tolerate.

Acting Chairman

Charges must not be made against individuals or companies.

Mr. Broughan

I do not have any problem saying this in the House. I said it outside the House. The Oxigen company will not allow professional trade union representation. Every worker in this House and in the public service is allowed to have professional trade union representation, but this is denied to these waste management workers. This is disgraceful and appalling and must be resisted. Each one of us and executives from Mr. Michael O'Leary of Ryanair to the head of management of the Oxigen company has access to professional representation when he or she negotiates his or her salary and conditions, but these same people deny basic professional representation to ordinary workers. This is an undemocratic outrage. It is unconstitutional and should be ended. I have no hesitation in naming this company in the House. I am proud to do so.

These workers, a delegation from whom I met last Saturday, carry out a vital job. They were involved in the collection of newspapers and other waste material for recycling, which is a fundamental objective of the Minister of State's colleague, the Minister for the Environment, Heritage and Local Government, Deputy Cullen. Many of these employees were senior members of staff who had previously worked in companies where trade unions were active and thought it was obvious that they would join the SIPTU trade union to gain representation. For their troubles they ended up being dismissed and are now walking the streets in protest. It is essential that this does not happen again.

I commend the Minister of State and the Government for getting us to this stage. I hope the Bill marks the first step on the way to cutting out the type of behaviour to which I referred. The provisions in the Bill will make illegal some of what has happened in Oxigen. A fundamental point is that everybody, from Deputies and Senators down to every worker, deserves the most professional representation in terms of their wages and conditions.

Debate adjourned.