Dáil Éireann díospóireacht -
Thursday, 25 Jun 2015

Vol. 884 No. 2

Industrial Relations (Amendment) Bill 2015: Report Stage (Resumed) and Final Stage

Deputy Peadar Tóibín

I move amendment No. 10:

In page 16, line 29, after “not” to insert “blacklist,”.

As the Minister is aware, there are major issues internationally regarding blacklisting. Large companies operating within Ireland have been identified as having been previously involved in blacklisting. The process of blacklisting is very dangerous and negative. Where an individual is blacklisted, he or she is prevented from earning a living and-or must relinquish his or her trade union activism. Blacklisting has the effect of quarantining individuals and denying them access to the workplace. Thus, they have no ability to represent, influence, persuade or mobilise others to stand for their rights. This sends a message to other individuals operating in a particular sector that their attempts to join a union or be active within a union mean they too will be sent packing and will find themselves on the dole queue.

Blacklisting is an extremely insidious method by which unscrupulous employers can cleanse, from their perspective, their operations of individuals who could cause difficulties. However, from our perspective and from that of workers in the sector, these individuals are representatives of the needs of employees. This is about finding an equilibrium between employers and employees so that both groups are able to function and represent their needs. If the playing field is level, there is a better opportunity for outcomes that are fair to both employer and employee. Blacklisting is an effort to ensure the playing field is uneven.

Dave Smith and Phil Chamberlain have recently published a book on blacklisting in Britain. Even the UK Labour Party MP, Mr. John McDonnell noted that blacklisting has deliberate effects in the economy.

In the last debate I had with the Minister of State, he said there was no evidence blacklisting operated in Ireland. The same argument was put forward in Britain until widespread and systematic blacklisting by 30 major contractors of more than 3,000 trade union activists was uncovered. For the Minister of State to say it does not exist in Ireland is to repeat the false statements made in Britain when people did not believe it existed there. The fact that the two economies are so closely linked in so many ways, with the same companies and many of the same practices operating in both jurisdictions, logically suggests that the practice would also travel. There is no point in shutting the door after the horse has bolted. This is why Governments create legislation. A good Government, with foresight, will create legislation to ensure that the horse does not bolt and the problem does not arise. Prevention is better than cure, and this is why I ask the Minister of State to accept my amendment.

Deputy Paul Murphy

I support Deputy Tóibín's amendment. The issue of blacklisting is very important in light of the revelations during recent years in Britain that The Consulting Association, TCA, was found to have held a blacklist of 3,200 construction workers who were deemed to be militant, trade union activists or who had pursued employment tribunals. A number of companies or contractors which were members of TCA paid a yearly subscription of approximately £3,000 plus £220 for each inquiry into a worker. Approximately 20 construction companies were involved in it. At least one of the companies is active in Ireland. While this does not mean the company is using blacklists in Ireland, it means Deputy Tóibín's point is relevant. It is naive to expect the practice of blacklisting would not exist in Ireland, and it is essential that it be explicitly ruled out, given that it has affected the lives of thousands of workers in Britain.

The same applies to amendment No. 11 which seeks to insert "trade union membership or activity" as grounds on which an employer cannot penalise, or threaten to penalise, a worker. There are many anti-trade union employers. Many employers see the organisation of trade unions and trade union activists as a threat to their ability to maximise the exploitation of their workers and the profits they can make. Therefore, we need as many legal protections as possible to enable trade unions and workers to organise, even in hostile environments.

Minister of State at the Department of Jobs, Enterprise and Innovation (Deputy Gerald Nash)

Amendment No. 10 seeks to include a prohibition on blacklisting of a worker in the anti-victimisation provisions in section 19 for workers covered by a sectoral employment order, SEO. We can all agree that blacklisting of persons, for whatever reason, is an abhorrent practice, particularly regarding people exercising their rights regarding their remuneration or terms of employment. If there is any evidence that this practice occurs in Ireland - I have received no evidence or information on it - I will move on it. In my daily engagements with trade union officials and representatives working with people across the country, it has not once been raised with me in my role as Minister of State with responsibility for business and employment. If anybody has information or evidence suggesting the practice is ongoing in Ireland, Deputies and others are duty bound to report it to the authorities and may make reference to this in the House. If the practice were happening, I would be one of the first people to be informed. It is unwise to address any such fundamental issue in a piecemeal manner, as the amendment would suggest. However, if action were needed, it would need to be examined in the round and in the context of our suite of industrial relations and employment legislation. We need to keep a vigilant eye on the entire area. We are aware of the practice from some high profile cases in the UK and I agree it is an insidious and horrendous practice.

The purpose of amendment No. 11 is to add trade union membership or activity to the activities in respect of which an employer may not penalise a worker to whom an SEO applies. A number of protections are already in place for workers who consider they have been subjected to victimisation in the workplace. Any worker who has been victimised already has the opportunity to take a case under the Industrial Relations Acts.

In addition, Members will be aware of the 2004 code of practice on victimisation, which provides that "Where there is a dispute in an employment where collective bargaining fails to take place ... no person ... should be victimised or suffer disadvantage as a consequence of their legitimate actions or affiliation arising from that dispute." A procedure for addressing complaints of victimisation is set out in the Industrial Relations (Miscellaneous Provisions) Act 2004 and these protections will be further enhanced in the context of provisions in Part 3 of this Bill in regard to the Government's commitment on collective bargaining. Accordingly, I cannot accept these amendments.

An Leas-Cheann Comhairle

I call Deputy Tóibín. I remind Members that their second contributions should not exceed two minutes.

Deputy Peadar Tóibín

We often hear from the Government benches that all we on this side of the House are interested in is critique, giving out and populism, yet when we create solutions to problems or potential problems they are completely ignored, as was the case when I introduced legislation to pierce the corporate veil in this Chamber, which, in large part, would have resolved the experience of the Clerys workers. In these amendments we seek a particular solution. The Minister of State is saying he is against it but he will not prevent it. Effectively, he is saying that he will not legislate for it until somebody has suffered - until somebody has lost their job, is unable to provide for their family and has been exploited. The Minister of State's logic is that he needs a number of people to be exploited before he will act. He said he would not act in a piecemeal fashion but he has not said that tomorrow, the next day, this term or the next term he will produce comprehensive legislation on blacklisting which will prevent it in the future. My concern is that the Minister of State is saying one thing but doing nothing about it. All we will have in the future is tea and sympathy, but I suggest that we should not have a Minister for tea and sympathy; rather, we should have a Minister who makes sure that such things do not happen. In the Clerys case, the Minister said he was going to look those employers in the eye and speak to them about their moral obligations. The fact of the matter is that anybody in the State could have looked them in the eye or spoken about their moral obligations, but the only person who can legislate is the Minister, and that is his responsibility.

Deputy Paul Murphy

The Minister of State's reason for not accepting the amendment does not hold much water. In regard to amendment No. 10, he suggested that to add the word "blacklist" would be to deal with it in a piecemeal way. The alternative is to do nothing and wait for a major blacklisting scandal to emerge, and then to say that we did not want to do something about it in a piecemeal way. If the Minister of State wants to bring forth legislation to deal with blacklisting, that is great - I am sure we would support it - but right now it is quite a simple matter and I do not see what the problem is with adding the word "blacklist" to the subsection such that it would read: "An employer shall not blacklist, penalise or threaten penalisation over a worker for," etc. It clearly would provide strength to workers. It would make it more difficult for employers to discriminate against workers who are involved in trade union activity. The reasons given by the Minister of State do not hold water.

The same applies to the reasons given for the Minister of State's refusal to accept amendment No. 11. Again, I do not see how in any sense the Minister of State can say that it would be a problem for workers, or that any problem would be created by inserting the words "trade union members or activity" as other grounds for not penalising workers. The reality is that the current environment is a difficult one for trade unions. Many employers are very hostile and use the crisis to try to push back trade union rights. Therefore, the more legislation we have that would assist organisations on the ground, the better. Adding those words would be of assistance.

An Leas-Cheann Comhairle

Has the Minister of State anything further to add?

Deputy Gerald Nash

No.

An Leas-Cheann Comhairle

Does Deputy Tóibín wish to press the amendment?

Deputy Peadar Tóibín

Yes.

Amendment put:

The Dáil divided: Tá, 30; Níl, 51.

Tá

• Adams, Gerry.
• Aylward, Bobby.
• Boyd Barrett, Richard.
• Broughan, Thomas P.
• Calleary, Dara.
• Colreavy, Michael.
• Daly, Clare.
• Doherty, Pearse.
• Dooley, Timmy.
• Fitzmaurice, Michael.
• Fleming, Tom.
• Mac Lochlainn, Pádraig.
• Mathews, Peter.
• McConalogue, Charlie.
• McDonald, Mary Lou.
• McGrath, Finian.
• McGrath, Michael.
• McLellan, Sandra.
• Murphy, Paul.
• Naughten, Denis.
• Ó Snodaigh, Aengus.
• O'Brien, Jonathan.
• 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.
• Conlan, Seán.
• Connaughton, Paul J.
• Conway, Ciara.
• Coveney, Simon.
• Deasy, John.
• Deering, Pat.
• Dowds, Robert.
• Doyle, Andrew.
• Farrell, Alan.
• Fitzpatrick, Peter.
• Hannigan, Dominic.
• Harrington, Noel.
• Harris, Simon.
• Heydon, Martin.
• Humphreys, Heather.
• Humphreys, Kevin.
• Kehoe, Paul.
• Kyne, Seán.
• Lyons, John.
• McFadden, Gabrielle.
• McGinley, Dinny.
• McGrath, Mattie.
• Maloney, Eamonn.
• Mitchell O'Connor, Mary.
• Mulherin, Michelle.
• Nash, Gerald.
• Neville, Dan.
• O'Donovan, Patrick.
• O'Mahony, John.
• Penrose, Willie.
• Phelan, Ann.
• Phelan, John Paul.
• Quinn, Ruairí.
• Rabbitte, Pat.
• Reilly, James.
• Ryan, Brendan.
• Shatter, Alan.
• Spring, Arthur.
• Stanton, David.
• Tuffy, Joanna.
• Twomey, Liam.
• Varadkar, Leo.
• Wall, Jack.
• Walsh, Brian.

Tellers: Tá, Deputies Peadar Tóibín and Aengus Ó Snodaigh; Níl, Deputies Paul Kehoe and John Lyons.

Amendment declared lost.

Deputy Peadar Tóibín

I move amendment No. 11:

In page 16, between lines 29 and 30, to insert the following:

“(a) trade union membership or activity,”.

An Leas-Cheann Comhairle

Is Deputy Tóibín pressing the amendment?

Deputy Peadar Tóibín

Yes.

Amendment put and declared lost.

Deputy Gerald Nash

I move amendment No. 12:

In page 17, line 4, to delete “under Part 4 of the Act of 2015” and substitute “under section 22”.

Section 19 of the Bill provides for anti-penalisation measures to protect a worker who invokes any right conferred on him or her by the Act or takes other specified actions under the Act. An amendment introduced on Committee Stage provided that, if penalisation of a worker under section 19 constitutes a dismissal under the Unfair Dismissals Acts, the worker may not seek relief under both Acts.

However, an incorrect reference to Part 4 of the Workplace Relations Act 2015 was included in the amendment and the correct reference should have been to section 22, which deals with the relevant redress provisions by an adjudication officer for contraventions of provisions of this Bill. I highlighted this error on Committee Stage and indicated that I would address it on Report Stage.

On a related point, Deputy Tóibín raised a question as to whether an employee could be required to travel long distances in the context of making an application to the Circuit Court under section 34 of the Unfair Dismissals Act 1977 where such an application must be made in the circuit where the employer carries on his or her business. I have taken advice on this and I am informed that this is a standard provision and is interpreted as having a meaning as being where the employee habitually is based in terms of working for that employer. This phrase will be familiar to anybody dealing with various ranges of legislation, whether in regard to the Department of Social Protection or any other Department. It is where the employee habitually is based in terms of working for that employer.

Amendment agreed to.

Acting Chairman (Deputy Catherine Byrne)

Amendments Nos. 13 to 15, inclusive, are related and will be discussed together.

Deputy Peadar Tóibín

I move amendment No. 13:

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

“(6) The Minister may authorise other persons, including designated union officials, to carry out inspections and monitoring of Registered Employment Agreements, Registered Employment Orders and Employment Regulation Orders.

(7) The Minister may make regulations providing access, for union officials, to the workplace and employees for the purpose of this Act.

(8) An employer shall not coerce workers to relinquish or abstain from a registered employment agreement.”.

These amendments arise from the fact there are massive compliance and enforcement problems within the labour market in this State. These enforcement and compliance levels are a disaster for individuals. Legislation is not worth a damn if it is not enforced or complied with. We can have all the talk and debates in this Chamber about it but it is no use if the necessary mechanisms are not in place. The Minister of State might tell us what are the levels of compliance in all of the different sectors, given I am told that non-compliance is very high in a number of different sectors.

As I have mentioned previously, one of the best ways to ensure compliance or enforcement is to allow for the natural equilibrium between workers and employers to exist. We should give them both the necessary influence and power to be able to have an equal relationship and, in that equal relationship, we are most likely to have resolution of problems without them going any further. It is when the ability of the workers to represent themselves and have their issues dealt with is suppressed that we are forced down the route of making the State responsible for compliance. We know this costs an awful lot of money to put in place, is not very successful and, in many areas, is extremely unsuccessful for a large number of reasons. Even where it does work, it is often far too late to have an impact on the individual's core experience.

Prior to the McGowan judgment, these entitlements were part and parcel of the REA framework underpinning the right of an individual to trade union representation and all that representation entails. Would we have any other case where an expert professional who is entitled to represent an individual would not have access to that individual or the circumstances that individual is experiencing? I imagine we would not. In the case of solicitors, for example, that is what we would provide for. These three amendments simply create a natural equilibrium between both groups and they simply let individual trade union representatives gain access to where the problem is. It is not revolutionary and it mirrors what was previously the case. For decent employers, it is not a threat because decent employers will not find themselves suffering in any way from this process.

Deputy Paul Murphy

I support Deputy Tóibín's amendments. In regard to amendment No. 14, I make the point that the normal practice in non-unionised workplaces at the moment in terms of disciplinary procedures is that the employee in question will be entitled to have a co-employee as a silent witness. Given the massive power imbalance that exists between the employer and employee, we can see how intimidating that experience is and how, in many cases, it can be difficult even to find a silent witness because it means another worker putting his or her head above the parapet in a context where bullying may be taking place and, in some sense, there may be victimisation of those who lift their heads above the parapet. What the amendment would mean is that, even in workplaces that are not particularly well organised and where the employer has not recognised the union, those who are members of unions will be entitled to have representation and have someone there. It goes some measure towards adjusting the power imbalance that exists between a worker and an employer, who can have a team of HR or IR people to deal with the issue.

In regard to amendment No. 15, I make the point that the State's mechanisms for monitoring compliance with REAs and employment rights in general are inadequate. They are inadequately resourced and huge levels of non-compliance are found. To the extent the State is able to carry out investigations, it is clear compliance is inadequate. We could think back to the GAMA dispute to make the point but there have many other instances since then.

The role of trade unions is to represent working people and ensure their members get the best wages and terms and conditions they possibly can. A key part of that role is ensuring compliance with REAs and with the employment rights of their workers. It makes sense that trade unions should have access to workplaces in order to be able to achieve those. It is the only real mechanism that exists to ensure these things are actually complied with, as opposed to just sitting back and hoping that employers will do it when we have an inadequate mechanism from the point of view of the State. This relates to the very basic rights of trade unions to organise in the workplace. The point is that where trade unions can recruit members, the workers will be organised and this will go some way to addressing the power imbalance that exists by having workers come together.

A current example of where this would be important is an issue that has been spoken of many times, not only in this debate but in the last number of months in the Chamber. This is the question of bogus self-employment in the construction industry, which is clearly massively widespread. This should be a problem for Revenue, which loses out on significant revenue, but it does not have the resources or the inclination to deal with it, and the mechanisms of the State have not in general dealt with it. For trade unions to have access to workplaces would mean finding out and investigating these situations, and rooting out and exposing bogus self-employment. The only mechanism we really have is that of freeing up trade unions to do the jobs they are meant to do, as opposed to having employers being able to effectively shut out trade unions and make it extremely difficult for the employees in a company, or on a contract, to start from scratch and get organised. I believe all three amendments are extremely important.

Deputy Gerald Nash

Amendment No. 13 from Deputy Tóibín seeks to provide a role for trade union officials in the enforcement of registered employment agreements, registered employment orders - which are more correctly entitled sectoral employment orders - and employment regulation orders. The amendment would also provide for the Minister making regulations providing for a right of access to trade union officials to the workplace and employees. Finally, it seeks to prohibit an employer from coercing workers to relinquish or abstain from an REA.

In respect of REAs, it is clearly a matter for the parties concerned whether they wish to include in the agreement provisions in regard to access to workplaces for trade union officials, and I understand this was the case previously. A registered employment agreement will be binding on the parties to the agreement and I am aware that some previous REAs, such as the construction REA, provided that, in the event of concerns arising regarding compliance, a trade union official would have access to a designated member of management. It is totally open to the parties to agree similar provisions in the future.

There is nothing in the legislation to prevent that happening. The right of access, so to speak, does not currently exist in primary legislation and it is misleading to pretend it does.

As regards the appointment of other persons, including union officials as inspectors, the powers that have been given to the National Employment Rights Authority inspectors are quite extensive. They include, for example, the power to use reasonable force to enter a place of work or a premises where there is a reasonable belief it is being used for the employment of persons or the keeping of records. NERA inspectors have powers to copy records and remove books, documents or records for a period they reasonably consider necessary. Inspectors can, under warrant of the District Court, enter a domestic dwelling with other inspectors or members of the Garda Síochána in pursuit of documents or records. Such extensive powers are rightly and appropriately reserved for officers of the Minister who are appointed as inspectors. It is ultimately, and correctly, for the State to ensure there is compliance with legislation in this and other areas of law.

It is vital that trade unions are able to represent the interests of their members and take action in support of those interests. The laws of this State vindicate that right. However, the suggestion that trade union officials should have a statutory right to enter a workplace to meet with workers, even in workplaces that do not recognise trade unions, is a new proposition which represents a fundamental departure from the current position. It would, very significantly, leave the important legislation that is before us today open to the possibility of a legal challenge as regards an employer's constitutional right not to engage with or recognise trade unions. Having worked over a long period with the relevant actors to restore the sectoral frameworks following the McGowan decision in 2013, I am loath to open the door to a challenge that would jeopardise this legislation, which is extremely urgent and entirely necessary for the enhancement of employment rights in this country. We must all be mindful of the potential for such challenges when considering legislation. All of us who are serious or claim to be serious about enhancing workers' rights should concern ourselves with the possibility of legal challenges in the context of this Bill. What we have before us is finely-balanced legislation. It is critical that we are able to enact it in a spirit of confidence that the provisions it contains are copperfastened and secure. I am loath to stand over anything that might jeopardise the legislation by leaving it open to any class of challenge. We can be sure there will be people only too prepared to consider such a challenge. In that context, I implore colleagues to support the overarching principles of the Bill and what it seeks to achieve. We must work together to that end.

Amendment No. 14 provides for an entitlement for a union to represent an employee's interests under a registered employment agreement or sectoral employment order, including matters involving discipline and grievance procedures. Section 41(15) of the Workplace Relations Act 2015 already provides that a trade union official may accompany a worker at proceedings before an adjudication officer in regard to a complaint, while section 44(9) of that Act has the same provision in respect of proceedings before the Labour Court. Accordingly, I cannot accept this amendment.

Amendment No. 15 proposes further rights of access to workplaces for trade union officials for the purposes of monitoring compliance with REAs and SEOs, and also with a view to carrying out trade union business on the premises with workers. For the reasons I outlined in respect of amendment No. 13, and more comprehensively on Committee Stage, I cannot accept this amendment.

Deputy Peadar Tóibín

One of the issues that attracted a great deal of attention in this House in recent months was the crisis at Kishoge Community College, which involved a State contract awarded to a private developer. Individuals working at that site were forced into subcontracting status and there was wholesale abuse of the relevant contracts tax, RCT, system. When those workers totted up their wages at the end of the week and the number of hours they had done, they found they were being paid €5 per hour. When we on this side of the House made efforts to have the matter investigated, we were met with a pass-the-parcel response from the Government, the answer always being that it was some other Minister's responsibility. Investigations into what happened were carried out by a number of State agencies, but they were hampered by a lack of resources and no justice was delivered to the individuals concerned. In the end, the issue was referred to the courts. That is the result one gets when there is not a fair balance between workers' rights and employers' rights.

I previously asked the Minister a question, the answer to which would be helpful in considering the need for the amendments I have tabled. What are the compliance levels in these sectors?

Deputy Paul Murphy

The reality is that the State mechanisms for checking employer compliance with the various REAs and so on are inadequate. The agencies in question simply do not have the resources that are needed. That fact is underlined by the finding in successive NERA reports that there is widespread non-compliance. If the mechanisms were working properly, employers would know they are likely to be caught and would not so blatantly breach their responsibilities under the law. Despite this evidence of non-compliance, however, there is no proposal from the Government to increase the funding and resourcing of NERA, the labour inspectorate or any other body charged with monitoring compliance.

These amendments propose that we authorise other persons, including designated union officials, to carry out inspections and monitoring. Trade unions, as organisations of workers designed to protect workers' rights, have a vested interest in assisting the State in ensuring the law is adhered to in respect of the upholding of those rights. The Government's response, however, is, "No, it is not their job to do so". The Government has no intention of allowing anybody else to do it, which leaves us with the prospect of continued widespread non-compliance, situations arising like that at the Kishoge site in Lucan and the use of bogus subcontractors right across the construction sector. Abuse of workers' rights is widespread but the State does not have the resources in place to deal with it and there is no intention to provide those resources. By rejecting these amendments, the Government is refusing an opportunity to afford trade unions the facility to deal with these matters on their members' behalf.

Deputy Gerald Nash

I thank the Deputies for their contributions and accept their bona fides on this issue. We all want to see effective enforcement and high levels of compliance with the law. Like the Revenue Commissioners, the Health and Safety Authority and other State agencies, NERA takes what might be described as a risk-based approach to its inspections and investigations. There are particular sectors of the economy to which its pays particular attention. I do not have the figures for 2014 because, as I said yesterday, NERA's report for last year is not yet available. When it is, it will be laid before the House and I will be happy to have a discussion on it. If it is ever the case that NERA is required to have more resources to carry out the job we all want to see it do on behalf of the State, then we will have that discussion.

The overarching principle behind the introduction of sectoral employment orders is to address the gap that emerged following the McGowan judgment in 2013. When that vacuum arose, we started to identify particular issues, in the construction sector in particular. That gap is being filled by a robust, constitutionally sound framework for sectoral employment orders. The provisions we have brought forward deal not only with the question of decent levels of remuneration but also with standards. It is important to recognise that.

The new provisions around the Workplace Relations Commission will further strengthen our adjudication, investigation and other processes. This will provide for quick resolution and enforcement through the National Employment Rights Authority, NERA. We are streamlining our systems all the time, considering some of the issues which emerged in recent years.

The decision to reintroduce sectoral employment orders, SEOs, was made swiftly. I am pleased this legislation will address some of the concerns that have arisen during the absence of a framework that promotes higher standards in particular industries.

Amendment put and declared lost.

Deputy Peadar Tóibín

I move amendment No. 14:

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

“Union entitled to represent members’ interests

20. (1) A trade union, at the request of the employee, may represent the employee in relation to the employee’s rights and entitlements under a registered employment agreement and sectoral employment order.

(2) A union is entitled to represent its members in relation to any matter involving the discipline or grievance procedure.”.

Amendment put and declared lost.

Deputy Peadar Tóibín

I move amendment No. 15:

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

“Access to workplaces

21. (1) A trade union official is entitled, in accordance with this section to enter a workplace for purposes related to:

(a) monitoring compliance with the operation of a registered employment agreement and sectoral employment order;

(b) monitoring compliance with other Acts dealing with employment-related rights of trade union members;

(c) to seek compliance with relevant requirements in any case where non-compliance is detected;

(d) discuss trade union business with trade union members;

(e) to seek to recruit employees as trade union members;

(f) to provide information on the trade union and trade union membership to any employee on the premises.

(2) A discussion in a workplace between an employee and a trade union official who is entitled under this section to enter the workplace for the purpose of the discussion must not exceed a reasonable duration.

(3) An employer may deduct from an employee’s wages any amount in respect of the time the employee is engaged in a discussion referred to in subsection (1)(d).”.

Amendment put and declared lost.

Deputy Peadar Tóibín

I move amendment No. 16:

In page 19, between lines 33 and 34, to insert the following:

“Regulations

20. The Minister may by regulations provide for a mechanism to provide for representation by or on behalf of retired employees, including organised groups of retired employees, in relation to his, her or their pensions, deferred or otherwise.”.

Amendment put and declared lost.

Deputy Gerald Nash

I move amendment No. 17:

In page 21, to delete lines 3 to 9 and substitute the following:

“(b) in section 41—

(i) by the insertion of the following subsection after subsection (3):

“(3A) An employer or a trade union representative of an employer affected by an agreement specified in paragraph 29 of Part 1 of Schedule 5 may present a complaint to the Director General that an employer affected by the agreement has contravened the agreement and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.”,

and

(ii) by the insertion of the following subsection after subsection (18):

“(19) In this section, references to specified person for the purposes of a complaint in relation to a provision specified in—

(a) paragraph 29 or 30 of Part 1 of Schedule 5, or

(b) paragraph 11 of Part 2 of Schedule 5,

shall be construed as references to a trade union representative of the person entitled to present the complaint.”,”.

The purpose of amendment No. 17 is to add to the Bill’s enforcement provisions a mechanism for an employer or a trade union representative of an employer affected by a registered employment agreement, REA, to make a complaint to the Workplace Relations Commission that another employer affected by the REA has contravened the agreement. Section 10 of the Industrial Relations Act 1969 had previously provided for such a mechanism. It is considered appropriate to continue to provide such a mechanism for an employer to submit a complaint to the Workplace Relations Commission in such circumstances. Such a complaint regarding a breach of an REA will then be dealt with in the same manner as a complaint submitted by a worker.

As a consequence, section 10 of the 1969 Act will be repealed which has been provided for in amendment No. 3.

Amendment agreed to.

Amendment No. 18 not moved.

Deputy Gerald Nash

I move amendment No. 19:

In page 30, after line 23, to insert the following:

“PART 4

MISCELLANEOUS AMENDMENTS

Amendment of section 3 of Act of 1946

39. Section 3 of the Act of 1946 is amended in the definition of “trade dispute” by the insertion of “and includes any such dispute or difference between employers and workers where the employment has ceased,” after “of any person”.”.

Amendment agreed to.

Acting Chairman (Deputy Catherine Byrne)

Amendment No. 21 is consequential on amendment No. 20. Amendments Nos. 20 and 21 may be discussed together.

Deputy Gerald Nash

I move amendment No. 20:

In page 30, after line 23, to insert the following:

“Making of establishment orders

40. The Act of 1946 is amended by the substitution of the following section for section 39:

“39. (1) Where the Court has held, in pursuance of section 38 of this Act, an inquiry into an application for an establishment order, the Court may, subject to section 37 of this Act, if it is satisfied that to do so would promote harmonious industrial relations between workers and employers and assist in the avoidance of industrial unrest, make a recommendation to the Minister in either the terms of the draft establishment order prepared in accordance with section 38 or with such modifications of those terms as it considers necessary.

(2) Where the Court makes a recommendation under subsection (1), it shall forward a copy of the recommendation to the Minister.

(3) As soon as practicable after receipt of a copy of a recommendation under subsection (2), the Minister shall, where he or she is satisfied that subsection (1) has been complied with, and where he or she considers it appropriate to do so, make an order in the terms of the recommendation.

(4) Where the Minister is not satisfied that subsection (1) has been complied with, or where he or she considers that it is not appropriate to make an order in the terms of the recommendation, he or she shall—

(a) refuse to make an order in the terms of the recommendation, and

(b) notify the Court in writing of his or her decision and the reasons for the decision.

(5) An order under subsection (3) may contain such incidental, supplementary and consequential provisions as the Minister considers necessary or expedient for the purposes of the order including, where the order abolishes a joint labour committee pursuant to a recommendation of the Court, the revocation of an employment regulation order made pursuant to proposals made by the joint labour committee concerned.

(6) Every order under subsection (3) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”.”.

Amendments Nos. 20 and 21 provide for necessary amendments to the Industrial Relations Act 1946 to address a potential weakness in the provisions dealing with the establishment of new joint labour committees, JLCs, under section 39, and their variation or cancellation under section 40. Sections 39 and 40 of the Industrial Relations Act 1946 provide for the making of orders by the Labour Court for the establishment of new JLCs or of orders providing for their revocation and variation.

However, section 41A of the Industrial Relations Act 1946, inserted by section 11 of the Industrial Relations (Amendment) Act 2012, amended certain sections of the 1946 Act and provided that reviews of each JLC will be carried out by the Labour Court, as soon as practicable after the commencement of the Act and at least once every five years thereafter. These amendments were informed by the decision in the High Court ruling in the John Grace Fried Chicken constitutional challenge. Section 41A sets down the specific criteria to which the Labour Court is required to have regard when carrying out the independent review.

The outcome of such a review informs the Labour Court as to whether any JLC should be abolished, maintained in its current form, amalgamated with another JLC or have its establishment order amended. The Labour Court then makes recommendations to the Minister and, if satisfied that the correct procedures have been followed and the Minister considers it appropriate to do so, he or she will make an order in the terms of the recommendation.

There is no doubt but that having two distinct legal avenues with regard to establishment orders is, at best, confusing and, at worst, raises the question as to whether a future JLC established or broadened in scope under sections 39 and 40 of the Industrial Relations Act 1946 would be reasonably sound if challenged.

Accordingly, this amendment to the 1946 Act addresses this anomaly. It provides for amendments to sections 39 and 40 of the Act to provide that, instead of the Labour Court making an order establishing a JLC or revoking or varying an establishment order, it will submit a recommendation to the Minister on the issue, who, if satisfied that the provisions of the Act have been complied with by the court and he or she considers it appropriate to do so, will make an order in terms of the recommendation. If the Minister is not satisfied, or does not consider it appropriate to do so, he or she will refuse to make the order and inform the court in writing of the decision and reasons therefor.

Amendment agreed to.

Deputy Gerald Nash

I move amendment No. 21:

In page 30, after line 23, to insert the following:

“Amendment of section 40 of Act of 1946

41. Section 40 of the Act of 1946 is amended by the substitution of “may make a recommendation to the Minister to abolish the joint labour committee established by such establishment order or amend such establishment order, and the provisions of section 38 and section 39 (amended by section 40 of the Industrial Relations (Amendment) Act 2015) of this Act shall apply in relation to such application as if the application were an application under section 36.” for “may by order abolish the joint labour committee established by such establishment order or amend such establishment order, and the provisions of section 38 and section 39 of this Act shall apply in relation to such application and to the order (if any) made under this section as if the application were an application under section 38 and the order were an establishment order.”.”.

Amendment agreed to.

Acting Chairman (Deputy Catherine Byrne)

Amendments Nos. 22 and 25 are related and may be discussed together.

Deputy Gerald Nash

I move amendment No. 22:

In page 30, after line 23, to insert the following:

“Amendment of section 1 of Industrial Relations Act 1976

42. Section 1 of the Industrial Relations Act 1976 is amended by the substitution of the following definition for the definition of “agriculture”:

“ ‘agriculture’ means—

(a) the production of animals (other than fish), including the production of meat and other animal produce intended for human consumption,

(b) the sorting and packing of meat and other animal produce,

(c) the production, sorting, and packing of crops, including fruit and vegetables, intended for human or animal consumption, and

(d) horticulture, including market gardening, garden nurseries and nursery grounds.”.”.

Amendment No. 22 provides for an amendment to the definition of “agriculture” in the Industrial Relations Act 1976.

The Industrial Relations Act 1976 provides for the establishment of a joint labour committee, JLC, for agricultural workers. In 2013, the Labour Court undertook a review of the then ten existing JLCs and made recommendations as to whether any JLC should be abolished, maintained in its current form, amalgamated with another JLC or have its establishment order amended. The court recommended it be retained for the agriculture sector with reduced scope to cover only those workers in those parts of an establishment engaged in farming, defined as the production, sorting and packing of animals, animal produce, crops, fruit and vegetables for consumable use and those engaged in horticulture including market gardens, garden nurseries and nursery grounds.

With the exception of the agriculture JLC, implementation of the recommendations regarding the scope of the other JLCs was given effect by way of ministerial order. As the agricultural workers JLC was established under primary legislation, and the scope of the JLC is derived from the definition of “agriculture” in section 1 of the 1976 Act, any amendment to the scope of the existing JLC requires an amendment to this definition to reflect the Labour Court recommendation.

Amendment No. 25 amends the original establishment order for the agriculture JLC to reflect the new definition.

Amendment agreed to.

Deputy Gerald Nash

I move amendment No. 23:

In page 30, after line 23, to insert the following:

“Amendment of section 23 of Act of 1990

43. The Act of 1990 is amended in subsection (1) of section 23—

(a) by the insertion of “(or, where the employment has ceased, worked under)” after “has entered into or works under”, and

(b) by the insertion of the following paragraph after paragraph (c):

“(ca) a teacher employed by an education and training board,”.”.

Amendment agreed to.

Deputy Gerald Nash

I move amendment No. 24:

In page 30, after line 23, to insert the following:

“Time limit in relation to trade dispute where retired worker is party to dispute

44. The Act of 1990 is amended by the insertion of the following section after section 26:

"26A. (1)Notwithstanding any other provision of this or any other enactment, but subject to subsection (2), an adjudication officer or the Court shall not investigate a trade dispute to which a worker who has ceased to be employed by reason of his or her retirement is a party unless—

(a) the dispute was referred to the Commission for conciliation within a period of 6 months from the date on which the worker’s employment ceased, or the date on which the event to which the dispute relates occurred, whichever is the earlier, or

(b) the dispute was referred to an adjudication officer or, as the case may be, the Court within the period referred to in paragraph (a).

(2) Notwithstanding subsection (1), an adjudication officer or, as the case may be, the Court may extend the period referred to in that subsection by a further period not exceeding 6 months where the adjudication officer or the Court is satisfied that the failure to refer the dispute within the period referred to in subsection (1) was due to reasonable cause.

(3) The Commission or the Court shall not investigate a trade dispute to which a worker referred to in subsection (1) is a party where the dispute is subject to investigation by the Pensions Ombudsman.".".

Amendment agreed to.

Deputy Gerald Nash

I move amendment No. 25:

In page 30, after line 23, to insert the following:

"Amendment of Agricultural Workers Joint Labour Committee Establishment Order 1976

45. The Agricultural Workers Joint Labour Committee Establishment Order 1976 (S.I. No. 198 of 1976) is amended by the substitution of—

"AND WHEREAS by the said section 1 (amended by section 42 of the Industrial Relations (Amendment) Act 2015) of the Act of 1976, 'agriculture' means—

(a) the production of animals (other than fish), including the production of meat and other animal produce intended for human consumption,

(b) the sorting and packing of meat and other animal produce,

(c) the production, sorting, and packing of crops, including fruit and vegetables, intended for human or animal consumption, and

(d) horticulture, including market gardening, garden nurseries and nursery grounds;”

for "AND WHEREAS by the said Section 1 of the Act of 1976 agriculture is defined as including horticulture, the production of any consumable produce which is grown for sale or for consumption or other use, dairy farming, poultry farming, the use of land as grazing, meadow or pasture land or orchard or osier land or woodland, or for market gardens, private gardens, nursery grounds or sports grounds, the caring for or the rearing or training of animals and any other incidental activities connected with agriculture;".".

Amendment agreed to.

Bill, as amended, received for final consideration and passed.