Seanad Éireann díospóireacht -
Tuesday, 13 Jul 1982

Vol. 98 No. 9

Trade Disputes (Amendment) Bill, 1982: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Labour (Mr. Gene Fitzgerald)

I am pleased to bring this measure before the House particularly in view of the support it received in the Dáil from representatives of all parties.

Traditionally, industrial relations in Ireland have been portrayed as being somehow independent of the law of the land. It is certainly true that the law intervenes to a lesser extent in our system of free collective bargaining than is the case among many of our European neighbours. However, in so far as it delineates the framework within which industrial relations are practised, the law plays an important role in establishing a floor of rights on both sides of industry. It sets down minimum standards of behaviour for employers and workers, while leaving both maximum scope for negotiating pay and conditions of employment. This flexibility is the cornerstone of our industrial relations system.

The Trade Disputes Act, 1906, forms the basis of trade union law in Ireland. During the latter half of the 19th century, when the conflict between capital and labour intensified with the gradual spread of industrialisation, laws were enacted which protected the business interests of employers against offences such as conspiracy on the part of workers. These offences, in so far as they were committed in furtherance of a trade dispute, were eventually decriminalised in the Conspiracy and Protection of Property Act, 1875, but lawful trade union activities still remained actionable in the civil courts.

The introduction of the 1906 Act provided trade union members with legal protection for the acts of picketing, inducing breaches of contracts of employment, civil conspiracy and interference with the trade or employment of others.

Naturally, limits were set to these immunities, and the criterion for deciding if they applied was whether the acts done were carried out in contemplation or furtherance of a trade dispute. The Act also extended to trade unions themselves immunity from any legal action for damages. The Act of 1906 transformed the basis on which industrial relations were conducted. Since then, the Act has been modified only once. The Trade Union Act, 1941, confined nearly all of the immunities to trade unions holding negotiation licences and to their members and officials. The 1941 Act also made it an offence for any body, which was not an excepted body under the Act, to carry on negotiations for the fixing of terms and conditions of employment unless it had a negotiation licence.

The position now is that the main 1906 Act immunities apply to industrial action taken by members and officials of licensed trade unions "in contemplation or furtherance of a trade dispute". The Act defines a trade dispute as "any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person". The term "workmen" is further defined as "all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises".

The aim of the Bill before this House is to resolve difficulties which have arisen as a result of this latter definition. The courts have held on several occasions that the phrase "trade or industry" has to be strictly construed and, accordingly, the protections of the Act have been interpreted as applying only to commercial employments. The result has been that the immunities of the 1906 Act have not been available to over 200,000 workers engaged in non-commercial employment. This Bill will remove the anomaly by providing for the deletion of the phrase "trade or industry".

From now on, the immunities provided by the Act of 1906 will apply to persons in all sectors of the economy, provided they are members of licensed trade unions. Members of the Garda Síochána and of the Defence Forces are excluded from the scope of the Bill before the House. The primary reason for their exclusion is that both bodies are governed by other codes of law which recognise their special status in relation to national security and the maintenance of law and order.

The Government have decided to introduce this measure because there is little justification for continuing to withhold the legal protections of the 1906 Act from a substantial part of the total workforce employed. The Irish Congress of Trade Unions have been calling for this piece of legislation for many years. Indeed, the absence of amending legislation was advanced as the reason for Congress withdrawal from the Commission on Industrial Relations. In order to remove what the trade union movement see clearly as a serious grievance, the Government have decided that the time has come to introduce this amendment and remove any obstacle to Government — trade union co-operation.

In return, the ICTU have assured me that they will enter into discussions as soon as possible on ways of remedying deficiencies in our industrial relations system, including those identified by the Commission on Industrial Relations. I would hope, too, that the Federated Union of Employers will re-consider their initial response to my call for discussions and avail of the opportunity to share in the shaping of our future industrial relations system, a system perhaps which will have to serve us over decades, a system that must be improved and can be improved, and can best be improved with the co-operation to which I refer.

I have already said in the Dáil that I will devote my time, energy and effort to ensure that both sides of industry, with the Government, can have meaningful discussions and make meaningful progress in providing for our young people, in particular, a better and improved industrial relations structure. Given our commitment as a society to the concept of free collective bargaining — all Members on all sides of this House have always supported that concept — I need hardly say that the maximum degree of consensus is needed before any reforms are undertaken. If we do it that way, it will be more meaningful and more advantageous and surely it will serve our community all that much better. I sincerely hope that I will have the full co-operation of employers and trade unions in the important task that lies ahead.

I commend this Bill to the House.

Mr. O'Connell

I welcome this Bill on behalf of this side of the House. I am very happy to be able to say that, in March 1980, when the Fine Gael Party published their policy on industrial relations called "Working Together: A Charter for Labour Peace", they committed themselves to extending the protection of the law to all places of employment. We are very glad to see the Government move on this and to see legislation being introduced to eliminate this anomaly.

When we consider the whole area of industrial relations and look at the practices and the institutions which exist, we become very conscious of the fact that what has happened in this area is very much a piecemeal affair, something which has developed over the course of the years, generally in answer to particular ad hoc events, or incidents or developments in society. We hear much less nowadays than we heard some years ago — or even a short time ago — of major industrial disputes. Unfortunately this is probably connected with the less healthy state of the economy, the less dynamic state of the economy. In a situation in which people are finding it more and more difficult to get employment, or to hold on to their existing employment many people find themselves constrained to consider more carefully how they should behave in whatever employment they have.

Nevertheless, the major problem remains. The problem is this. If we consider the many different kinds of dispute that arise, we will find that there are individual symptoms, or individual causes, in particular instances. We will also find that a great deal of our problem comes from the fact that we have not got to grips with the difficulties which arise in a mixed economy. We have not yet really developed a national philosophy of industrial relations. Many of the difficulties occur because of failure to understand the role of various partners in the social process or the economic process and developments, particularly in the trades union movement, which reflect the general development of society.

Any Government or party who address themselves to the problem of industrial relations will be forced to steer a very difficult and hazardous path between what will be described as over-flexible and inadequate measures, inadequate responses to real problems, and what will be described as draconian measures, as anti-working class measures, and the like. This arises from the fact that, when we consider the whole area of industrial relations, we find people reacting to the kind of dispute that arises with responses which are almost programmed. The whole problem of the picket is an example of this.

It seems to me that, until we address ourselves, not as Governments or Oppositions, or political parties, but as a community and as a society, to the problem of the picket and the problem the picket presents, we will not find a satisfactory response to our industrial relations problems. The picket has become a symbol, a kind of voodoo, a ritual symbol which eliminates an intelligent response, eliminates a response which is thought out or considered. There is no need to rehearse the many ludicrous examples of disputes, walkouts and stoppages which have occurred because of this interpretation of the picket.

There is a further factor which must be addressed at some stage, that is, the health and development of the trades union movement. In these islands the trades union movement came first and socialism came second. What I mean by that is that, compared with the situation on the European mainland where trades unions generally developed out of an intellectual commitment to socialist or socialistic principles, what happened in this country on the whole was the development of what were then called combinations of workmen to protect their interests and to try to improve working conditions, and socialism or a social view of society was added to that movement. In this island the marriage between these two factors has never been a very happy or a very successful one. The relevance of this is that many of us feel that the trades union movement in its practice and in the way it responds to the economic situation, to the economic needs of society and social needs of society, has become almost an instrument of what some of the socialist forefathers might have called the capitalist society. I was interested indeed to note that the Minister used the phrase "conflict between capital and labour". Possibly I could have some discussions with him on that at a later and more appropriate time.

The trades union movement in many cases has become in practice an instrument for milking society, for deriving sectional benefits for particular sections of that society to the exclusion of benefit to society as a whole. This we must view as a corruption of the trades union movement. I am well aware that to say this kind of thing might well lead to misunderstanding, to an accusation of an attack against the trades union movement as a whole, or the principle of the trades union movement. That is the very opposite of my intention here. My intention here is to draw the attention of the Minister, in particular if he intends to draft further trades union or industrial relations legislation, to the need for a strengthening of the trades union movement, the need for a reinvigoration of the trades union movement.

Ideally that reinvigoration and that strengthening of the trades union movement should come from the movement itself. It is not in the nature of things or in the nature of practical politics something that can be imposed by Governments. Inevitably, if such moves were to be made by a Government in particular circumstances, the trades union movement and its members, and I as a trade unionist, would become alarmed and consider that possibly something was being done to weaken the trades union movement as a whole. I recommend to the Minister that, when he is considering further legislation on industrial relations, he should have a look at the Fine Gael document to which I referred, "Working Together, A Charter for Labour Peace" and consider those measures we proposed which, by improving the educational facilities available to the trades unions, by improving the resources available to the trades unions, would lead to a better standard of service provided by the trades unions for their members. The Minister will agree that often disputes — many of them irrational on paper — arise in a situation in which the ordinary member of a trade union feels that he is not being serviced adequately by his trade union, he is not being taken into the confidence of the officers and the officials, and that he is not receiving the proper attention. In our proposals we include a section which tries to address that particular problem.

We on this side of the House welcome this Bill. We welcome its gesture — more than a gesture — towards the public service. There are a number of factors which would suggest that this Bill is not enough and that we will have to go further. We are left with the problem of conciliation and arbitration in the public sector. This has often caused serious problems in the past and it requires urgent attention. We are left with the problem of essential services. There may well be people who, in their response to this Bill, will suggest that it is giving a licence to the unions in the public sector to increase the harassment of the ordinary public by means of disputes and stoppages in essential services. It would be regrettable if that were to happen. I do not think the unions will respond in this way. They are responsible, and they will do their best. They will not exploit the advantage given to them or the rights recognised in this Bill.

The problem remains, and it is a problem to which we have to address ourselves as a society if, in these difficult times, we are to achieve a renewal of economic growth, and if we are to maintain or to rediscover the consciousness of ourselves as a community under great stress. Among the proposals we put forward in our policy was the introduction of the concept of a cooling-off period, something which would probably be welcome not only in industrial disputes but in the Houses of the Oireachtas at certain times of the year. The concept of a cooling-off period exists in other countries. We should consider it as a means of trying to prevent disputes occurring in situations where tempers have been aroused, where there has been a misunderstanding, where there is a conflict, and where a little bit of consideration might lead to a winding down of the dispute.

In the past few months those of us who occasionally get time to look at the media in one form or the other may well have become conscious of something that looks almost like a campaign against the public service. In various areas in the community the suggestion has been put forward that the public service is a very substantial part of the cause of our economic and financial problems. There is a growing tendency, almost an orchestrated tendency, to make the public service into a whipping boy or scapegoat in this area. There is little doubt that traditionally the public service was always the means of providing employment for likely lads and lassies. It was almost part of our culture. In past times the civil service and other aspects of the public service were the places to which aspiring young men and women looked. One of the consequences of the competition which took place for these posts was that we found ourselves with a public service whose calibre, whose talents and dedication — I say this in all sincerity — equalled that of any other country.

If we look at the personnel of the public service we find, and found there traditionally, men and women of the very highest quality, and we were very lucky to have such people in the service of the community. In circumstances when our country was chronically or endemically liable to emigration, when jobs were difficult to find, in a static economy, a static society generally, the public service came to be seen as a means of getting people into employment without too much consideration of the quality of work performed at the lower levels, or of the rationality of the tasks allotted.

I should like to draw an important distinction between the concept of a job, a task and an income. Until we address ourselves to the distinction between these three concepts and get it clear in our minds, we will not solve the problem in the public sector, nor will we solve the problem of unemployment. The first traditional aspect of the public sector was the idea of the public service as a means of creating jobs. Regrettably there was a period more recently in our history — particularly the period between 1977 and 1980 — when the public service was used as a means of creating a substantial number of "jobs" in a hurry. Many of the young people who were brought into the public service at that time were brought in in order to improve the statistics and were brought into employment which did not assist the economy in a concrete, practical or constructive way.

An Cathaoirleach

May I interrupt the Senator? Could you show the relevance of what you are saying to this Bill?

Mr. O'Connell

Yes, a Chathaoirligh. In addressing ourselves to a Bill which is extending the protection of the law to the public service, we must consider its effect on the public sector and public opinion. We must be prepared to justify such legislation, and to consider its possible consequences. For example somebody might want to know more definitely than was provided for in the Minister's speech, why the Garda Síochána and the Defence Forces were not included in the provisions of this legislation.

This complex area brings into the debate the whole question of the role of those two bodies in our society and the role they play within the political framework. There would be those who would suggest that to put the Garda Síochána and the Army into the general network of trade unions to bring them into the same categories, would be, for example, to threaten the security of the State or possibly to give them a political role which is not traditional in our society. I do not believe this is something to which we need to give very great consideration, but it would be an advantage if the Minister, in his concluding remarks, could tease out this matter and enunciate the philosophy of his Government in this respect.

Referring to the problems I mentioned earlier and the tendency of certain sectors to try to turn the public sector into a whipping boy or scapegoat for our economic and financial problems, I feel it is important — and the Minister for the Public Service has a function to perform here — that we clarify the role of the public sector in our society. This is particularly relevant when we consider the references that have been made today to possible privatisation of CIE. A very relevant question, and something we must concern ourselves with very shortly, is what exactly do we want the public sector to do? Do we hold that the job of the public sector is to do only those things which cannot effectively, cannot cheaply, or cannot according to some social philosophy, be done by the private sector, or do we believe that in some very substantial cases, the public sector generally should be there in preference to the private sector?

Finally, while I welcome the decision of the Government to bring forward this Bill, I do not believe it will solve certain problems that will arise; in fact, it may conceivably exacerbate them. We are coming into an era in which the whole role of the public sector is going to be discussed, and it is important that when we come to discuss it, we will discuss it rationally and without prejudice or idées fixes. I welcome the Bill which, is long overdue and congratulate the Minister upon introducing it.

Mr. Mullooly

I welcome the Bill and congratulate the Minister for introducing it. This Bill is long overdue. For years, the Irish Congress of Trade Unions and individual public service unions have been campaigning for the introduction of this amendment to the 1906 Trade Disputes Act.

Nobody can deny that it was unfair and discriminatory that private sector employees should have legal protection in relation to industrial disputes while public service employees did not have the same protection. This was a cause of much unrest and dissatisfaction among public service employees. I am confident that the extension of the protection of the 1906 Trade Disputes Act to all employees, with the exception of the Garda Síochána and members of the Defence Forces, will remove a lot of tension and lead to much better industrial relations in the public service.

The Minister emphasised that the protections and immunities afforded by the legislation will apply only to members of licensed trade unions. This is only as it should be. Many people believe we have far too many trade unions and that many of our industrial relations problems result from this fact. The more unions we have the more competition there will be for members. Some unions appear to feel that the more militant they are the better their chances of attracting new members. This militancy, unfortunately, frequently translates into unnecessary and unwarranted industrial action.

In order to prevent a further deterioration in an already unsatisfactory situation, the Minister should make it as difficult as possible for break-away unions to obtain negotiating licences. The vast majority of public service unions, over the years, have been very responsible in their approach to industrial relations. The passing of this Bill will ensure that that situation will continue in the years ahead.

I welcome this Bill because I believe any move that leads to an improvement in industrial relations is to be welcomed. Industrial strikes always result in more losers than winners.

Aire na Gaeltachta (Mr. Flynn)

An féidir leat fanacht go dtí go dtiocfaidh an tAire ar ais? Tá sé gnóthach faoi láthair, ach, níl ach cúpla nóiméad i gceist.

Minister for Labour (Mr. Gene Fitzgerald)

I apologise for delaying the House for a few minutes. I did not expect the debate to end quite so soon.

Mr. O'Connell

I would like to apologise on behalf of this side of the House. I did my best to be as detailed as I could.

An Leas-Chathaoirleach

The matter does not arise.

Mr. Gene Fitzgerald

May I thank Senators O'Connell and Mullooly for their welcome of the measure before the House? In my opening comments I detailed the necessity for the measure and I must agree that it is not the solution to all our industrial relations problems. I never made that claim that this or any measure we bring before either House could effect such a solution. I agree with some of the points made. It is particularly appropriate that an INTO member should contribute to this debate because that union, more than any other, suffered financially as a result of the interpretation — and this is a point that must not be forgotten of the Act. As the House will be aware, other interpretations were put on that Act in other areas, but in the area within our jurisdiction, the courts decided on a particular interpretation of the definition of workers engaged in trade and industry, and that excluded the 200,000 or so public sector workers to whom I referred.

I repeat my call to the Federated Union of Employers. I believe the best way forward in industrial relations is by consensus. I said to the parties in the other House — and I had a very good response from all those who spoke there as I had here — that the area of industrial relations is not a political area. It is an area where we all have something to contribute and where none of us has all the answers or all the solutions. I would always listen to points put forward by any of the parties or by any Members of either House if they were sincere. Improvements are needed. Up-dating must continue. We have our established institutions — the Labour Court and its ancillary services, the Rights Commissioners and the Appeals Tribunal. We must continue to examine and decide where improvements or changes are needed so that we will have a more efficient and better organised industrial relations machinery to meet the needs of any period.

Senator O'Connell referred to essential services. It is ironic that this Bill did not necessarily distinguish between essential services and non-essential services. In other words, there are some aspects of the public sector which could be regarded as essential services and to which the term "trade and industry" could be applied. Many of the services regarded as essential traditionally have enjoyed the full range of immunity under this Act whereas other groups are excluded at present and could not by any stretch of the imagination, be held to be engaged in the provision of essential services.

I share the concern expressed about the effects of disputes on essential services because they inconvenience and create hardship for so many of our people. We, as elected representatives, have an obligation and duty to ensure that as far as possible those essential services are provided.

The Senator referred to the cooling off period. That idea has often been put forward. It has been used in the United States with mixed results. As I said in my opening remarks, I would prefer free collective bargaining, the arrangement of procedures and, if necessary, their support by legislative arrangement, and I look forward to being able to develop what might be regarded as a code of practice in the discussions that will be taking place.

Senator O'Connell spoke of the need for better education and training, a subject extremely dear to my heart and to which I applied myself with some success during the period — with an interlude — I have been in the Department of Labour. The contribution to the training and educational fund of the Irish Congress of Trade Unions was substantially increased during that period, and I support the Senator's views on that. I have a personal desire to see the day when, in the latter years of primary school curriculum and certainly at second level, some coverage would be given to this subject. Pupils should be told what industry means, how many sides there are to industry and so on. In other words, there is the employer and employee, both of equal importance in the responsibility of one to the other and the relationship that should exist between them. Human relations play the most important role in good industrial relations. One could say that industry in this country up to comparatively recent times did not give the importance desirable or necessary to the personnel function.

Times have changed, I am glad to say, and indeed on my visit to Galway this year to renew my acquaintance with the Institute of Personnel Management, I was very pleased to see a growing number of people present, and growing importance being given to the function within our developing industries. This is extremely important. At a dinner of the Irish Congress in Belfast last week there was an enlightened approach by responsible people towards trade union affairs and activities.

Senator O'Connell spoke about the importance of the trade union movement to the community and the economy as a whole. Everybody should be involved in trade union affairs. Trade union officials are dedicated and hard working people. They must be disappointed at the apathy shown by so many people. If that apathy could be converted into interest, it would be helpful to officials at difficult times.

Senator Mullooly referred to the multiplicity of trade unions and to the need to make it more difficult for breakaway unions to be formed. My predecessor Deputy O'Leary, introduced the 1975 Act to make it easier for trade unions to amalgamate. In a recent conversation with him, we both agreed that progress in that area had been disappointing; the number of amalgamations have been small. My disappointment as Minister for Labour has been that unfortunately the moneys provided in the Estimates in recent years have not even been expended. We must encourage more amalgamations in the best interests of members and the trade union movement. Another predecessor, the late Joe Brennan, introduced the Trade Union Act, 1971, which laid down conditions for the formation of new trade unions.

Senator O'Connell spoke of the special position of the Army and the Garda. Amendments would be needed to the Army Act and an Act governing the Garda Síochána to enable the same immunities to apply to them as apply to the remainder of the public service. I want the amendment to the Trade Disputes Act to stand on its own and to be carried through as early as possible. As I said, the Irish Congress of Trade Unions have for long regarded it as an irritant and they have made the commitment to me that once action is taken, they are prepared to sit down and discuss improvements of the procedure for industrial relations.

Deputy Barry Desmond said he was concerned about the Garda. I, too, sympathise with their anxiety to be involved in national pay talks, national understandings and so on. This creates difficulties because of the structure of the Employer-Labour Conference, and that sort of forum which was used in the past. I am not sure that I have an easy solution. Deputy Desmond pointed out the difficulties he saw, but he did not offer any solution, although he was sympathetic. In the interests of all, it would be desirable if the House would accept this amendment to the 1906 Act.

I thank Senators for their help and for pushing through the Second Stage, even more expeditiously than I expected.

Question put and agreed to.

Agreed to take remaining Stages today.