Industrial Relations (Amendment) Bill 2015: Report Stage

I move amendment No. 1:

In page 5, line 12, after “2015” to insert “and certain other enactments”.

The amendment amends the Long Title of the Bill to reflect the amendments now proposed to the Industrial Relations Acts in particular.

Amendment agreed to.

Amendments Nos. 2 and 4 form a composite proposal and will be discussed together.

I move amendment No. 2:

In page 5, after line 29, to insert the following:

“ “Act of 1946” means the Industrial Relations Act 1946;

“Act of 1990” means the Industrial Relations Act 1990;”.

The purpose of amendments Nos. 2 and 4 is to provide that the definitions of "Act of 1946" and “Act of 1990” apply to the full Act rather than just Part 2 of the Act.

Amendment agreed to.

I move amendment No. 3:

In page 6, between lines 6 and 7, to insert the following:

“Repeals

4. The following provisions are repealed:

(a) section 10 of the Industrial Relations Act 1969;

(b) section 23(1)(d) of the Act of 1990;

(c) subsections (2), (5) and (6) of section 23 of the Act of 1990;

(d) sections 51 to 54 of the Act of 1990.”.

The amendment repeals a number of provisions of the Industrial Relations Acts. The repeal of section 10 of the 1969 Act arises from amendment No. 17, which provides for a mechanism by which an employer or a trade union representative of an employer affected by a registered employment agreement, REA, can make a complaint to the Workplace Relations Commission that another employer affected by the REA has contravened the agreement.

Statutory Instrument No. 264 of 1998 amended the definition of "worker" in section 23(1)(d) of the Industrial Relations Act 1990 in order to give officers of local authorities access to the Labour Relations Commission, LRC, the Labour Court and the rights commissioners. Given that it is considered unsafe to rely on changes made to statute by secondary legislation, it is proposed to confirm the amendment in primary legislation. The definition of "local authority" in section 23(d) of the 1990 Act is being deleted in consequence of the deletion of section 23(1)(d).

The amendment also provides for the deletion of subsections (5) and (6) of section 23 of the Act of 1990. Section 23(5) provides that the Government may, by order, amend the definition of "worker" in section 23(1) and may by order revoke or amend any such order. Section 23(6) deals with the laying of such orders before the Houses of the Oireachtas. The effect of the amendments is to remove the power to make changes to the definition of "worker" by ministerial order and to ensure future changes to the definition of "worker" will have to be made by primary legislation.

The repeal of sections 51 to 54 of the 1990 Act deals with certain record keeping requirements and enforcement provisions regarding REAs. These provision will be superseded by new record keeping provisions regarding REAs and sectoral employment orders provided for in the Bill and the enforcement provisions in the Workplace Relations Act 2015.

The Minister of State mentioned future changes to the definition of "worker". Could he clarify what it means? Would it impact on our attempts to expand this and any future legislation to include retired workers?

As it stands, the legislation would allow for changes to be made to the definition of "worker" in certain circumstances by statutory instrument or secondary legislation. Our advice is that it is unsafe and it is right and proper that any change to the definition would be made in primary legislation. I will deal with the pensions and access issue later further to the amendments the Deputy has tabled.

Will the amendments the Minister of State is discussing affect the issue of pensioners? Pensioners, for example the former Tara Mines workers, have already lost money through the pension levy and now, by way of section 50 of the Pensions Authority order, are losing a proportion of their funds. Will the amendments govern that issue?

Amendment agreed to.

I move amendment No. 4:

In page 6, to delete lines 13 and 14.

Amendment agreed to.

Amendments Nos. 5, 6, 16, 18, 19, 23 and 24 are related and will be discussed together.

I move amendment No. 5:

In page 6, line 17, after “1990.” to insert “For the avoidance of doubt the definition of worker shall also include “retired workers”.”.

On Committee Stage, we indicated that we would raise the issue and my colleagues, Deputies Clare Daly and Tóibín, have tabled similar amendments. The issue of retired workers is real and live. Since the Industrial Relations Acts of the 1990s, the landscape has changed dramatically for the worse. The retired Aer Lingus pensioners who made the company, were the reason it was so successful and made many sacrifices for it over many decades, had no input into the recent sale of the company. Their views, considerations and salaries, also known as their pensions, were not considered and they had no right to impact on the sale. In many other companies pensioners are finding their pension benefits slashed mid way through their retirements or on the verge of their retirements. Unlike younger people, they have no opportunity to earn extra income.

These people have made companies and made significant sacrifices for them, and it is time for legislation to catch up and recognise that pensioners in companies should be treated in the same way as those on the payroll. Although pensioners are on a payroll and are paying considerable tax on their pensions, when it comes to protection and input into decisions, they are treated as second-class citizens. This is an opportunity to promote them to first class in respect of the work they have given to their companies and the contribution they have made to the country through their taxes and which many of them continue to give in their communities. It is time for legislation to catch up.

I concur with Deputy Calleary. There is a disastrous situation across the State regarding pensioners, and examples include Irish Airline Staff Superannuation, IASS, ESB Retired Staff Association and Tara Mines, which is close to my area. Section 50 supersedes the trustee deeds to which these workers signed up and in which they invested money over a long period of time. These people have no voice at the table and can be ignored, other than through their nominee trustee on the board of trustees. Often, the trustees from the company have a majority. Given that the workers have already lost money through the pension levy, and have also taken another hit, there must be a mechanism by which they can influence the negotiations around these pensions. Although there was no obligation on Tara Mines to produce an actuarial certificate until 2016, the trustees have taken the decision to create the actuarial certificate far in advance of the date in order to reduce their future exposure. While I commend the Minister on focusing on this area, we need to ensure workers who have paid into pension pots can on retirement, when they are vulnerable, receive their pensions and have a voice in the process.

The amendments in the group are trying to achieve the same thing. The Government has made much of priding itself on being at the forefront of overhauling the State's industrial relations machinery. We tried to raise the issue during the discussions on the Workplace Relations Act, which was supposed to be the most significant overhaul of the system in 50 years and was supposed to deliver a world class workplace relations environment. While some improvements were made, it has left a substantial group of workers, albeit retired ones, out of the process.

If we do not rectify the matter in this legislation, it is clear from the previous amendment the Minister of State moved that it will not be rectified. It is urgent that this be done. The reason this is necessary now but was not when the original industrial relations machinery was set up is that, traditionally, the income and livelihood of a retired worker, who had a pension and was in receipt of it, was ring-fenced and could not be touched. If there were difficulties in a pension scheme, they were dealt with by the people who were paying into the scheme, not the people who had already retired. That was the justification for their not having a voice. Everything about that changed with the introduction of recent legislation, voted through and agreed by this Government, which allowed trustees to put their hands in the pockets of existing retired workers, and those decisions are being taken over the heads of retired workers. That is appalling. The answers we are getting to these issues from Minister's replies to parliamentary questions are not good enough.

The Irish aviation superannuation scheme has been the focus of considerable attention. The scheme has 15,000 members, which equates to the population of a small or even a medium-sized town, and when we add in their families, we are talking about a huge body of people whose livelihoods have been affected. Those people paid into a pension scheme all their working lives and they had a reasonable expectation that their retirement pensions would be ring-fenced. It is particularly galling for those people, some of whom worked in the State's national airline, that their colleagues who worked in the United States or in Britain are getting the full benefits of their pensions but those who worked in Ireland are seeing their retirement income decimated without their having any say in the matter. It is scandalous. When I raised this matter last week with the Minister for Transport, Tourism and Sport I got the following answer:

An agreed solution was implemented at the start of the year to address the funding difficulties in the [IASS] scheme. This agreed solution is a matter for the trustee, the companies participating in the scheme, the scheme members and the Pensions Authority.

However, it was not a matter for the scheme members, because the retired members were excluded from that process and did not have a voice in any of the discussions on compensation or mitigatory factors. Unless we provide for this now, how will people have a voice? It is scandalous. I would love to hear the Minister of State's justification for not doing this. What other scenario would we have in which existing, retired and deferred members - people against whose livelihoods decisions can be made - were not given a voice? This is extremely urgent. It is safe to say that if it is not addressed here, it will not be addressed anywhere else. Apart from the airport pensioners, there are many others in different defined benefit schemes. The idea that the Government can shrug its shoulders and say, "It is not us; it was the trustees who made those decisions, and we are very sorry for their troubles," is not washing with people because the deferred and retired members know that the reason the trustees have been empowered to take money from retired and deferred pensioners is that the Government changed the law to allow them to do so. That is where the blame will lie. A small rectification of that is required to give those people at least a voice in that process, so that they can have an input before such decisions are made.

If there are no other speakers in respect of this group of amendments, I will put the question that amendment No. 5 be made.

Can we hear the Minister of State's reply?

The Minister of State has a number of amendments linked to our amendments that may deal with many of our concerns.

I am thankful for the opportunity to respond to the proposed amendments from colleagues. Amendments Nos. 5, 6, 16 and 18 all deal with the issue of access by retired persons to the industrial relations machinery of the State. Deputy Calleary's two amendments seek to address this by providing the definition of "worker" under the 1990 Industrial Relations Act, including retired persons. I am providing in amendments Nos. 19, 23 and 24 for the necessary amendments to the Industrial Relations Acts to provide for access to the Workplace Relations Commission and the Labour Court for individual retired persons for the purpose of pursuing issues relating to the terms and conditions that pertained at the time of their retirement, and I will shortly address those amendments, which I flagged previously. Deputy Tóibín's amendment provides for a new section 20 to the Bill providing that the Minister may by regulation provide for a mechanism for representation by or on behalf of retired employees in regard to pension matters. Deputy Daly's amendment provides for a change to the definition of collective bargaining in Part 3 to include a reference to "a Retired Staff Association Organisation which represents the interests of former retired employees ... with the object of reaching agreement regarding Occupational Pension Schemes."

Furthermore, a number of Deputies raised the issue of pensioner groups having access on a collective basis to the State's industrial relations machinery when pursuing pension scheme grievances. I fully appreciate the concerns of retired and deferred members of pension schemes whose schemes are being restructured, particularly where restructuring would have an impact on existing or potential benefits. I am all too familiar with that issue. There are many former staff of the Irish airlines superannuation scheme, IASS, resident in my constituency, and I have met them. This is an issue to which I have given very careful consideration and, in doing so, it is important that we all bear in mind that the industrial relations system in Ireland is voluntary in nature. That is how it has evolved. As regards access to the Labour Relations Commission and the Labour Court, that is a central point. Any fundamental change to that principle that established some kind of a mandated right to be part of the process would alter fundamentally the conduct of industrial relations in this country, but, as it stands, where changes to pension schemes are negotiated at individual company level, whether as a result of a crisis in a scheme or otherwise, the outcome of that engagement cannot of itself change the pension scheme. That is an important point to bear in mind. Any proposed changes to the scheme are effected through the trustees and rules of the scheme and are at the discretion of the party so designated in the rules and deeds of the scheme.

In terms of changes to pension schemes generally, Deputies will be aware that the trustees of a particular scheme are required by law to act in the best interests of all the members, be they active, deferred or pensioner members. Until recently, this has been done on an individual basis. As I have stated in this House previously in the context of Report Stage amendments to the Workplace Relations Bill, the matter has been given careful consideration and, as a consequence, the Tánaiste and Minister for Social Protection has recently introduced regulations and approved amendments to guidance issued by the Pensions Authority to provide for the recognition by the trustees of a pension scheme of groups representing the interests of pensioners and deferred members of pension schemes. These significant changes mean that all groups representing the interests of the various categories of pension scheme membership are treated the same in the context of provisions in the Pensions Act. The changes to regulations will require that trustees of a pension scheme notify the groups representing the interests of retired and deferred members where the trustees of a scheme propose to apply to the Pensions Authority to restructure scheme benefits under section 50 of the Pensions Act. This notification affords the representative group an opportunity to make a submissions to the trustees of the scheme in regard to such proposals.

In addition, the Pensions Authority is now required to notify groups representing the interests of scheme members where the Pensions Authority proposes either to issue a unilateral direction under section 50 of the Pensions Act to the trustees of a scheme to restructure scheme benefits, or to wind up a pension scheme under section 50B of the Pensions Act. This notification affords the representative group an opportunity to make representations to the Pensions Authority in relation to such proposals, and these regulations also give the representative group the right to appeal such direction by the Pensions Authority to the High Court on a point of law. It is within this framework, rather than through the State's industrial relations machinery, that an appropriate collective approach should be and can be effected, and that has been given effect. Accordingly, I cannot accept amendments Nos. 5, 6, 16 and 18.

Moving on to amendments Nos. 19, 23 and 24, they will provide for the necessary amendment to the Industrial Relations Act to provide for access to the Workplace Relations Commission and the Labour Court by individual retired persons for the purpose of pursuing issues relating to the terms and conditions that pertained at the time of their retirement. Access to the Industrial Relations machinery of the State is governed by the definition of "worker" in section 23 of the Industrial Relations Act 1990, which provides, inter alia, that a "worker" means "any person aged 15 years or more who has entered into or works under a contract with an employer." In addition, section 3 of the Industrial Relations Act 1946 provides that a dispute between a worker and an employer only arises if it is "connected with the employment or non-employment, or the terms of employment, or the conditions of employment, of any person."

Legal advice received by the Labour Court on a number of occasions suggests that a person who is retired cannot be regarded as a worker and cannot be party to a trade dispute capable of investigation by the court. Where a person is retired, he or she cannot, at present, have a dispute concerning his or her employment or non-employment. Accordingly, a matter which arose prior to an individual's retirement and which was referred to the Labour Relations Commission or Labour Court prior to the individual's retirement and not referred after the retirement date may not be investigated. In practice, this has given rise to a situation in which persons are unable to address any work-related issues that may have come to light post-retirement.

Both the Labour Relations Commission and the Labour Court are of the view that a time-bound extension of the definitions of "worker" and "trade dispute" of the Industrial Relations Acts 1990 and 1946, respectively, would allow such issues to be processed efficiently and at little cost through the State industrial relations machinery. With this in mind, and more generally in light of the view that the requirements of good employment practice would dictate that retired persons have a facility by which work-related grievances can be examined on their merits, an amendment of the definition of "worker" within the meaning of section 23 of the Industrial Relations Act 1990 is proposed in order to facilitate such access.

Accordingly, amendment No. 23 provides for the necessary amendment of the definition to cover situations where the employment has ceased. Amendment No. 19 provides for the necessary accompanying amendment to the definition of "trade dispute" within the meaning of section 3 of the Industrial Relations Act to include a reference to a dispute or difference between employers and workers where the employment has ceased. Amendment No. 24 makes provision for time limitation on the access to be provided. In line with the provisions of most employment rights statutes, imposing a time limit on the bringing of claims is proposed. This would be necessary to avoid the Labour Court having to deal with stale claims being raised, which an employer may find impossible to defend due to the passage of time. In this context, a limit of six months after the employment has ended due to retirement, or after the date on which the event to which the dispute relates took place, accords, whichever is the earlier. A possibility of a further extension of six months where reasonable cause is shown is proposed. Work-related issues will exclude matters that come within the remit of the Pensions Ombudsman.

Amendment No. 23 also provides for an amendment to the definition of "worker" under section 23 of the 1990 Act. The change of reference amends "a member of staff of an education and training board" to "a teacher employed by an education and training board." This amendment would allow officers of education and training boards other than teachers access to the industrial relations machinery and reflects the position that, for some years now, industrial relations issues have been addressed on the basis that matters can be referred to the industrial relations bodies on an ad hoc basis. Teachers in education and training boards will continue to be served by a scheme of conciliation and arbitration.

I thank the Minister of State for his response. The difficulty is that the trustees' responsibility is to the scheme. There are a lot of responsibilities dictated to them in legislation that deal with the running of the scheme, not with the workers, pensioners, or others who depend on the scheme to feed, heat, and clothe themselves. Placing further responsibilities on the trustees to communicate with and involve pensioners is turning those communications into a box-ticking exercise for the scheme trustees, the Irish Pensions Board, etc. We are trying to legally protect pensioners and give them their stake in the company.

In the case of Tara Mines, the majority lies with those who have the interests of the company at heart, and who seek to reduce the exposure of the company. Notification in that process is really not worth a damn, because it just tells individuals what is going to happen. With amendment No. 24 as is, if we take the case of a Tara Mines worker who is 20 years retired and who has had a pension cut whereby the company is seeking to use section 50, will that worker be able to seek to resolve the case under the Minister of State's amendments?

As the other Deputies have said, notifying the members and groups is not consultation or engagement; it is a cosmetic exercise. The Minister of State said that the collective approach that is available to these workers is available to them through the courts. That is not a solution to this issue. When they have concerns, they can appeal, ultimately, on a point of law. That is not good enough. The point we are trying to make is that, like trade unions, staff associations have got the collective voice of their members in terms of living standards of workers who happen to be retired. There is a live dispute if their living conditions are being impacted upon now, yet they do not have a voice in that process. Saying that the trustees have to notify them does not give them that voice either.

Where there is to be a major restructuring of a scheme and discussions are taking place, it is not fair that trade unions, employers and other individuals can sit down while those whose living standards are going to impacted upon are not given a place at the table. That is what is being sought. Unfortunately, based on what the Minister of State is saying, it does not seem to be forthcoming. It is a matter of urgency at this stage, and we strongly appeal to the Minister of State to concede on this point.

Clearly, the issue of access to the Pensions Authority under section 54 by retired workers, deferred members and so on is new. It is a very positive development and I am confident it will deliver a fair and equitable outcome. I am not aware of cases that have been brought to the attention of the Pensions Authority at this point. I was happy to support the Tánaiste's view that this was the best and most meaningful way in which we could, under Irish law, address some of the very legitimate concerns outlined by Deputy Daly and others this morning.

I am very familiar with the Deputies' arguments. I represent a considerable number of people who have been affected by problems in their pension schemes which nobody would have foreseen. The Tánaiste and Minister for Social Protection has responsibility for pensions legislation. The solutions provided by the Tánaiste are, in general, fair, equitable and just and will be seen to be so in the fullness of time. It is a very difficult situation to deal with and legislate for.

In terms of how the right of access to the Pensions Authority will operate, it is not just about notification. I do not think people were listening to what I had to say earlier. The Bill provides for an obligation to consult and take on board the views of those who would be affected in a restructuring or if unilateral changes are proposed. It goes much deeper than that, as we should all acknowledge. A collective approach to the Pensions Authority is the correct one. It is the authority responsible. Under legislation, it is not necessarily a matter for the industrial relations machinery of the State. The more appropriate authority to deal with such issues in a fair and equitable way is the Pensions Authority. I am satisfied that, in the fullness of time, this approach will be considered to be the best.

The Government loves to say it consults the Opposition, listens to it and takes on board its concerns, yet it rarely does so. The same thing will happen here. Trustees will consult pensioners and take views on board, but they will proceed as planned unless there is robust legal protection for pensioners. Although I acknowledge the Minister of State's record on this, pension funds can spend millions of euro on legal fees to get around his "consultation" and his "taking on board". We need legislation that is as robust as possible and gives as much power as possible to retired workers.

The problem exists right across labour law that, if the law allows for companies to reduce exposure and costs and increase their profits, no matter what consultations or moral responsibilities may apply, those companies will employ individuals specifically to seek out the legal gaps to maximise their profit levels.

Therefore, it is our responsibility in this Chamber to make sure those gaps do not exist and that there is a cost for immoral behaviour. Given section 50 allows for a timescale in which companies have to respond to that legislation with an actuarial certificate, and that timescale could affect the level of funding of a pension scheme, this means, of course, that a company is going to seek to reduce its exposure in that regard. What we need to do is build in processes whereby either workers or those who are retired have a mechanism to achieve a just income.

We are dealing with a particularly marginalised and vulnerable sector of former workers who have already been hit hard. Tara Mines pensioners lost 10% of their income through the pension levy and they are now dealing with this issue. They were stepped through the process just as the Minister of State indicated - they were notified, they were consulted and, at the end of the consultation, they were ignored. Their gripe now is that no mechanism exists whereby their rights can be achieved. I was hopeful the Minister of State would come to the table with a resolution. What we are looking to do is to even the balance and create an equilibrium between the companies and the pensioners. Unfortunately, that does not exist in what the Minister of State has proposed. It must be achieved within the lifetime of this Government.

We have discussed this for a long time. The problem is that, in too many scenarios, consultation means, "You can say what you like but we are going to do what we want anyway." That, sadly, has been the experience of many people in this event. In order really to deliver a genuine say, where people are not just consulted but what they say is actually listened to, a collective voice must be given to the groups that represent retired workers and deferred and current members of pension schemes. They need a voice at the table. The example of the IASS is a good one. In that case, there were multiple talks taking place between trade unions and employers, but a body of workers was excluded from that process and decisions were made that have had a devastating impact on their livelihood and a substantial impact on the amount of money going into the local economy in areas like north Dublin, Shannon and parts of Cork. At this stage, the amount of money taken out of the pockets of retired pensioners up to this point of the year is already €3 million, which is a huge amount.

Staff associations need to have a right to a place at the table and to an input into collective bargaining. In that sense, my amendment seeks to give them the status of a trade union in discussions which involve changes to their pension scheme in that way. I do not think the pensions legislation sufficiently does this. The Pensions Authority is supposedly the arbiter and guardian of pensioners' rights but very serious conflicts of interest were raised in terms of the trustees in the IASS, for example, and I am not sure the Pensions Authority has undertaken any serious investigation of those concerns and allegations, even though the decisions of those trustees have ended up, post-consultation and notification, having a decimating effect on living standards.

The law requires that pension funds are managed and that trustees operate in such a way that decisions are made in the best interests of equitable outcomes for everyone involved in the scheme. It is not about increasing profits and the trustees of pension schemes do not operate on that basis. They operate on the basis of the interests of the current and future members of the scheme. It is not at all about increasing profits.

We have had experiences in recent years in particular, even though this is not new, where trade unions and employers have had to come together and consider what is in the best interests of maintaining jobs in the company and growing the company after what may have been a difficult set of circumstances. Those difficult negotiations have often involved changes to pension schemes. Sometimes a nuclear option has been facing a company, where the company will not be opening its doors the following week and, at other times, a nuclear option may be facing a pension fund, where the fund could effectively close because of a crisis that had hit it. Difficult decisions have had to be taken.

I believe the legislative response introduced by this Government is a fair response, taking into consideration everything we were required to do and the challenges facing many high profile pension arrangements in this country. It is always very difficult to accept that anybody would be negatively impacted by changes to a pension scheme. However, trustees, and ourselves, as legislators, have to take a broad view of this. For the reasons I outlined earlier, I cannot and do not think it appropriate to accept the amendments.

Amendment put:
The Dáil divided: Tá, 29; Níl, 50.

  • Aylward, Bobby.
  • Boyd Barrett, Richard.
  • Calleary, Dara.
  • Collins, Niall.
  • Colreavy, Michael.
  • Daly, Clare.
  • Ellis, Dessie.
  • Ferris, Martin.
  • Fleming, Tom.
  • Kelleher, Billy.
  • Kitt, Michael P.
  • Mac Lochlainn, Pádraig.
  • McConalogue, Charlie.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McGuinness, John.
  • McLellan, Sandra.
  • Murphy, Catherine.
  • Murphy, Paul.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Smith, Brendan.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Troy, Robert.
  • Wallace, Mick.

Níl

  • Bannon, James.
  • Barry, Tom.
  • Breen, Pat.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Connaughton, Paul J.
  • Conway, Ciara.
  • Costello, Joe.
  • Deasy, John.
  • Deering, Pat.
  • Dowds, Robert.
  • Durkan, Bernard J.
  • Farrell, Alan.
  • Feighan, Frank.
  • Ferris, Anne.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Humphreys, Heather.
  • Humphreys, Kevin.
  • Kehoe, Paul.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Kathleen.
  • Lyons, John.
  • McEntee, Helen.
  • McFadden, Gabrielle.
  • McGinley, Dinny.
  • McLoughlin, Tony.
  • Maloney, Eamonn.
  • Mulherin, Michelle.
  • Nash, Gerald.
  • Neville, Dan.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • Penrose, Willie.
  • Phelan, Ann.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Ryan, Brendan.
  • Shatter, Alan.
  • Spring, Arthur.
  • Stagg, Emmet.
  • Stanton, David.
  • Tuffy, Joanna.
  • Twomey, Liam.
  • Varadkar, Leo.
Tellers: Tá, Deputies Dara Calleary and Seán Ó Fearghaíl; Níl, Deputies Emmet Stagg and Paul Kehoe.
Amendment declared lost.

I move amendment No. 6:

In page 6, between lines 17 and 18, to insert the following:

“Amendment of Industrial Relations Act 1990

5. Section 23 of the industrial Relations Act 1990 is amended by the insertion of the following subsection after subsection (1):

“(1A) For the avoidance of doubt the definition of “workers” shall also include “retired workers”.”.”.

Amendment put and declared lost.

I move amendment No. 7:

In page 10, line 2, after “proper.” to insert the following:

“When making an order varying the agreement, the Court shall attempt to get the consent of both parties.”.

We spoke briefly about this on Committee Stage. The Labour Court has been given the power to make an order to vary an agreement. I assume that is only as a last-minute or emergency solution. The aim of this amendment is to ensure the court goes to every length possible to get the agreement of both employer and employee organisations before it makes that variation, and that this is protected.

Amendment No. 7 seeks to require the Labour Court to attempt to get the consent of both parties to a registered employment agreement, REA, before the court makes an order providing for its variation. It is important to set out in some detail the precise provisions in section 8 which provide for the procedures to be followed for a variation of an REA. In circumstances where all parties to the agreement so agree, the court will consider the matter and, having had regard to the same matters specified for its initial registration, make its decision.

Where one party wishes to vary the agreement but the other does not, the Bill provides for the initiation of comprehensive dispute resolution procedures involving local discussions, referral to the Workplace Relations Commission for conciliation, and Labour Court hearings and recommendations. If after the exhaustion of all these procedures no agreement has been reached, a party may apply to the Labour Court to have the agreement varied in terms of the court’s recommendation. Having considered the application and heard all parties involved, the court may refuse or grant such a variation as the court deems appropriate.

Where an REA provides that a party may withdraw from the agreement where the court has made a variation order in such circumstances, a party may inform the court of its intention to withdraw from the agreement. Accordingly, the court will be required to cancel or vary the agreement as appropriate.

It is clear that section 8 already provides for quite exhaustive procedures involving the parties themselves, the Workplace Relation Commission’s conciliation service and the Labour Court itself with the clear objective of trying to obtain the consent of both parties to a variation in an REA where one party does not initially agree. I would expect that a decision by the Labour Court to vary an REA in the absence of agreement, particularly following the exhaustion of the comprehensive dispute settlement provisions in the Bill, would be very much the exception, if it were to happen at all. Ultimately, it is open to one of the parties to withdraw from the agreement, resulting in its probable cancellation.

Given that the objective of Deputy Calleary’s amendment is already comprehensively addressed in section 8, I cannot accept this amendment.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 12, between lines 1 and 2, to insert the following:

“(g) subsistence,”.

We discussed this on Committee Stage. It is important to emphasise that there is no opposition from the contractors to the inclusion of this provision. It is consistent with existing practice in the construction sector in the payment of what is called country money, which is incurred when workers are working away from home. In other words, it is not the standard travelling-type pay which is linked to different journeys that happen on a daily basis, such as provision for a one-hour travelling time to a fixed location more than four miles from the workplace. Instead, this applies in situations in which an individual has been requested to completely change his or her travel pattern or move to a location that is far from the normal working sphere. Construction workers often have to travel for a job for a period of days, weeks or even longer. The existing practice of country money provides for this. This amendment seeks to include this in the legislation.

Section 12 provides for a definition of “remuneration” for the purposes of a Labour Court recommendation with regard to the terms of a sectoral employment order, SEO. The definition is based on the definition of “remuneration” included in the Protection of Employees (Temporary Agency Work) Act 2012. The definition includes basic pay and a list of other elements in excess of basic pay that may be included as part of the court’s recommendation for a rate of remuneration for a particular sector.

In this context, I do not consider that subsistence normally paid to workers to cover out-of-pocket expenses incurred for the purpose of carrying out their duties is part of a person’s pay. Moreover, subsistence payments are normally treated differently for tax purposes by the Revenue Commissioners. Accordingly, I do not propose to include it as part of the definition of remuneration, and, therefore, I cannot accept this amendment.

Amendment put and declared lost.

I move amendment No. 9:

In page 14, between lines 5 and 6, to insert the following:

“(e) the percentage of workers in the identified economic sector earning two-thirds or less of median income;

(f) the pervasiveness of part time and/or short hour contracts in the identified economic sector;”.

Much of the focus of the debate has been on the fact that many workers are not getting a decent wage. There are many people going out on a daily and weekly basis and working hard but not coming home with proper remuneration. Accordingly, they cannot pay for the normal items that families are entitled to, such as housing, food, clothing, health and education. Section 15 provides that when the Labour Court makes a recommendation to the Minister it shall have regard to several factors, such as the potential impact of levels of employment, unemployment, etc. I agree there is necessity that these factors be included when people are deciding on a process.

These provisions reflect similar factors the Low Pay Commission must also consider when making a recommendation to the Minister. There is an imbalance in the considerations which weighs heavily in favour of employers and encourages increasing levels of sharp practice in the economy. We have asked for these elements to be included so we have a society which treats people correctly and ensures people get proper wages. This simply deals with the percentage of workers in the identified economic sector earning two thirds or less of median income and the pervasiveness of part-time and-or short hour workers' contracts in the identified economic sector.

One of the purposes of reintroducing sectoral employment orders is to ensure fair and competitive but decent rates of pay in sectors of our economy which, many would argue, are entitled to higher rates of pay reflecting the skills and experience of the workers. It will be fundamental to the work of the Labour Court and the parties to consider all of these points. This is reflected in the criteria we have set out in the principles the court and parties must take into account in developing an initiative under the legislation and in requesting that an order be made by the Minister.

Section 15 of the Bill sets out what are very comprehensive and challenging sets of factors the court must take into account when making a recommendation to the Minister in respect of a sectoral employment order. Amendment No. 9 would add two further factors the court would be required to take into account. I have given significant consideration to these criteria with Government colleagues in drafting the Bill and I do not consider it necessary to specifically refer to median earnings changes or proportions above or below particular proportions of median earnings, particularly where one of the criteria specifically requires the court to look at the general level of remuneration in other sectors where similar workers are employed and where the court in making a recommendation must be of the view the recommendation is reasonably necessary to ensure what are described as fair and sustainable rates of remuneration in the sector concerned. I am confident this issue has been adequately addressed in the legislation.

The suggestion about the pervasiveness of part-time and-or short hour contracts is part of the wider decency at work agenda I am pursuing, including the study being carried out by the University of Limerick into the extent and prevalence of zero and low-hour contracts in this country. As I have said in the House and elsewhere, if some adjustments are required to enhance the protections already in place under Irish employment for people in these circumstances these will be brought forward by me for consideration by the Government. Accordingly, I cannot accept the amendment.

The problem is these pieces of legislation are all skewed. They all seek to take into consideration certain elements of the balance between the employee and employer and ignore and leave out the major issues of levels of pay and levels of underemployment in the economy. They take into consideration competitiveness but they do not look at the other side of the equation, which is the wages of the individual. Given the fact this is such a major problem in society, it is very important the Government takes this on board. To be honest, if we do not include this level of balance and equilibrium between both sides of the equation, we are guaranteeing that in the future, we will not have that harmonious relationship between workers and employers. Will the Minister of State ensure, even at this stage, that legislation in future takes into consideration low pay and underemployment and that we proof this legislation to ensure the infrastructure and adjudications that happen in future are on the basis of competitiveness, with low pay being a key element of the decision?

Amendment put:
The Dáil divided: Tá, 33; Níl, 53.

  • Aylward, Bobby.
  • Broughan, Thomas P.
  • Calleary, Dara.
  • Collins, Niall.
  • Colreavy, Michael.
  • Daly, Clare.
  • Ellis, Dessie.
  • Ferris, Martin.
  • Fitzmaurice, Michael.
  • Flanagan, Terence.
  • Kelleher, Billy.
  • Mac Lochlainn, Pádraig.
  • McConalogue, Charlie.
  • McDonald, Mary Lou.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McLellan, Sandra.
  • Murphy, Catherine.
  • Murphy, Paul.
  • Naughten, Denis.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Troy, Robert.
  • Wallace, Mick.

Níl

  • Bannon, James.
  • Barry, Tom.
  • Breen, Pat.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Connaughton, Paul J.
  • Conway, Ciara.
  • Costello, Joe.
  • Deasy, John.
  • Deering, Pat.
  • Dowds, Robert.
  • Durkan, Bernard J.
  • Farrell, Alan.
  • Feighan, Frank.
  • Ferris, Anne.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Humphreys, Heather.
  • Humphreys, Kevin.
  • Kehoe, Paul.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Kathleen.
  • Lyons, John.
  • McEntee, Helen.
  • McFadden, Gabrielle.
  • McLoughlin, Tony.
  • Maloney, Eamonn.
  • Mulherin, Michelle.
  • Neville, Dan.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • Penrose, Willie.
  • Perry, John.
  • Phelan, Ann.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Ryan, Brendan.
  • Shatter, Alan.
  • Spring, Arthur.
  • Stagg, Emmet.
  • Stanton, David.
  • Tuffy, Joanna.
  • Twomey, Liam.
  • Varadkar, Leo.
  • Wall, Jack.
  • White, Alex.
Tellers: Tá, Deputies Aengus Ó Snodaigh and Peadar Tóibín; Níl, Deputies Emmet Stagg and Paul Kehoe.
Amendment declared lost.
Debate adjourned.