Tom Fleming (Kerry South, Independent) | Oireachtas source

I welcome the opportunity to speak on the Industrial Relations (Amendment) Bill 2015. It gives the Oireachtas an opportunity to devise a framework that will provide for maximum industrial peace and constructive working arrangements. It includes new industrial relations laws which will rebalance the interests of both employers and employees. In the absence of collective bargaining, it will provide new mechanisms for workers who want to improve their terms and conditions of employment. For instance, in the current Dunnes Stores episode, collective bargaining could be used by the workers to advance their claims should the company continue to refuse to engage with them.

The economy is gradually improving as a result of the many sacrifices made by the various sectors in industry and general business. These collective efforts are now benefitting the economy.

It is most important this is further enhanced and developed to ensure everybody will experience the benefits of the recovery, which I hope will keep on the track it is at present and the economy will thrive. The other very heartening matter is the employment graph is positive and the availability of full-time jobs is on the increase.

It is crucial the legislation is fast tracked and implemented at as early a date as possible. Among the matters contained in the Bill which I very much welcome are that the Labour Court will examine issues such as pay and sick leave provided by other employers in the relevant industry before making formal recommendations. The legislation is aimed at ensuring employers agree to come to the negotiating table or risk the prospect of being hauled before the Circuit Court. This is something those involved in the ongoing saga at Dunnes Stores in particular will welcome very much. What is happening there is not common but isolated enough, and I hope it will be corrected. By and large employers are fair people and I hope this will not go down the legal route. Businesses try to run as good a shop as possible and remain viable. They have gone through a very enduring time over the past five or six years in particular. The legislation would give comfort all round and with a bit of common sense and fair mindedness I am sure it will be implemented for the overall good.

The Bill provides for the reintroduction of a mechanism for the registration of employment agreements between employers and trade unions governing remuneration and conditions of employment in individual enterprises. It provides for a new statutory framework for establishing minimum rates of remuneration and terms and conditions of employment for a specified type, class or group of workers, particularly in the context of transnational provision of services and promoting harmonious relations between workers. In effect it is a framework to replace the former sectoral registered employment agreements.

The Bill will put in place legislative amendments to the industrial relations legislation of 2001 and 2004 which are required to give effect to the programme for Government commitment to reform the law on employees' rights to engage in collective bargaining. This will ensure compliance by the State with recent judgments of the European Court of Human Rights. The statement of Government priorities for 2014 to 2016 included the enactment of collective bargaining legislation as approved by the Government.

The main reform proposed in the Bill deals with proposed changes to the system of registered employment agreements and thereafter with collective bargaining reform. The implications of the proposed reforms are dealt with thereafter. Recent years have seen significant changes in the sphere of collective bargaining in Ireland and important court challenges have been made to the framework. John Grace Fried Chicken Limited and Others v. The Catering Joint Labour Committee and Others was a High Court challenge to Part IV of the Industrial Relations Act 1946 which found there to be insufficient principles and policies for the exercise of the law-making power, which had been conferred on joint labour committees and which was found to be unconstitutional. On 7 July 2011, the High Court delivered its judgment in this case and found the joint labour committee wage setting mechanisms to be unconstitutional. The case was taken by John Grace Fried Chicken Limited of Cork and the Quick Service Food Alliance, an organisation representing a group of fast food outlets, and concerned an application to strike down an employment regulation order as unreasonable and constituting an unlawful interference with constitutionally protected property rights. The plaintiffs challenged the constitutionality of sections 42, 43 and 45 of the Industrial Relations Act 1946 and section 48 of the Industrial Relations Act 1990.

Mr. Justice Feeney in the High Court held that as the Industrial Relations Acts 1946 and 1990 failed to set out any matters that could properly be described as policies or principles directing or informing the joint labour committees and the Labour Court as to the matters to be taken into account in carrying out the fundamental task of fixing wage rates and conditions of employment, the power delegated to those bodies was excessive and amounted to an impermissible transfer of power. Thus sections 42, 43 and 45 of the 1946 Act were found to be repugnant to the Constitution. The John Grace decision resulted in Part IV of the 1946 Act being deemed invalid. Consequently, 17 employment regulation orders ceased to have any force in law from 7 July 2011. The decision was not appealed to the Supreme Court, and the Government enacted the Industrial Relations (Amendment) Act 2012 to rectify the difficulties identified in the John Grace decision.

McGowan and Others v. The Labour Court and others was a challenge to Part III of the Industrial Relations Act 1946 covering registered employment agreements. The Supreme Court decision has been interpreted by the Government as having struck down Part III in its entirety, such that amendments made by the Industrial Relations (Amendment) Act 2012 cannot attach to an unconstitutional regime. The case concerned a registered employment agreement for electrical contractors working in the construction trade and registered by the Labour Court on 24 September 1990, pursuant to Part III of the 1946 Act. Employers' organisations had long complained that this registered employment agreement, to which they were not a party, imposed obligations industry-wide and that the employer interests were not adequately represented.

The litigation was set in the context of an employee proposal to vary the REA in order to increase the minimum rate of pay in the sector, among other complex procedural matters. The issue in this case was ultimately narrowed down to the question of whether Part III of the 1946 Act offended against Article 15.2.1^oof the Constitution in the delegation of a law-making role to the Labour Court and to the parties to the REA. In other words, did Part III permit an excessive delegation of legislative powers?

In Ryanair v. the Labour Court and IMPACT in 2007, the Supreme Court found that the Labour Court did not adopt fair procedures in applying the Industrial Relations (Amendment) Act 2001 in deciding whether there was a trade dispute and whether a practice of collective bargaining was found at Ryanair. The context of the dispute were the terms and conditions of a training course offered to Ryanair pilots based in Dublin so that the pilots could fly larger airplanes. The pilots were unhappy with a particular term of the training, such that if Ryanair was compelled to engage in collective bargaining with any union within five years of the training, the pilots would have to compensate Ryanair for the cost of the training, which was €15,000. Following a failure to reach agreement on the issue, IMPACT and IALPA sought to bring a trade dispute before the Labour Court under the 2001 and 2004 Acts.

However, Ryanair rejected the jurisdiction of the Labour Court on the basis that there was no trade dispute as it is understood in the 2001 Act. It was the practice of Ryanair to engage in collective bargaining negotiations in respect of the pilots who were party to the trade dispute, if any, and the internal dispute resolution procedures had not failed to resolve the dispute, if any. The Labour Court decided for IMPACT on the jurisdiction point in January 2005 and Ryanair challenged that specific jurisdictional decision by way of judicial review in the High Court. Mr. Justice Hanna in the High Court upheld the Labour Court’s jurisdiction but the Supreme Court decided in favour of Ryanair. The judgment of Mr. Justice Geoghegan was delivered on 1 February 2007.

Ryanair claimed that collective bargaining in the company operated by way of a continual process in which Ryanair negotiated with representatives of its employees for the purpose of concluding collective agreements which fixed pay and other conditions of employment. This system of employee representative committees, ERCs, was described as a forum for employee representatives to negotiate terms and conditions with the company on an ongoing basis. However, Dublin pilot representatives withdrew from this forum in August 2004. Such withdrawal gave rise to the question of whether collective bargaining still existed in the company for that group of workers. IMPACT argued that the individuals elected as employee representatives did not engage in negotiation but, at most, a form of consultation. Even if the ERC could be considered a negotiating body, there were no pilot representatives on the ERCs and for this reason it could not be considered an excepted body in respect of pilots. The Labour Court agreed with this argument when it assumed jurisdiction over the matter.

The Supreme Court thus agreed with Ryanair that the decision of the Labour Court was flawed and that the procedure was fundamentally unfair. However, as an obiter comment, the Supreme Court also criticised Ryanair's handling of the trade dispute, stating, "Continual propaganda in correspondence as to how excellent the company is rather than taking up the issues point by point was not helpful to anybody".

Certain matters have recently been brought to my attention. The Tánaiste and Minister for Social Protection recently amended the Pensions Act to allow collective representation and recognition for groups representing former workers at the stage where trustees have applied for section 50 orders to the Pensions Authority. While the Tánaiste's initiative is welcome, it does not go far enough to address the concerns of the majority of pensioners. I ask the Minister for Social Protection to take this a step further and amend the Pensions Acts to allow for collective pensioner representations at the front end, and not the back end, of a process addressing a pension scheme deficit.

The fact that the principle of collective representation for former workers has been accepted and incorporated in pensions legislation now provides an opportunity in the Industrial Relations (Amendment) Bill 2015 to change the definition of "worker" to include "former workers" and to grant them access to the industrial relations machinery of the State. The right of the trade unions to represent their members in negotiations with employers on industrial relations issues is an inherent part of the industrial relations process in Ireland. This would include the option to refer any disputes that may arise during discussions between the parties to an independent mediation or arbitration process. Former workers should be afforded the same rights as workers and legislation should be introduced that would require former employers to engage with representative bodies for former workers on all matters relating to their original contracts of employment and pension matters.

I have been contacted by the ESB retired staff association. It is a national organisation, representing the interests of the majority of the ESB's 7,500 pensioners. What they are seeking in this Bill is, first, the rights of pensioner organisations to represent their members and to influence negotiations that would directly affect their financial security and, second, that pensioners would have access to the industrial relations and arbitration machinery of the State. The Government passed legislation for an annual 0.6% levy on the assets of private pension funds in 2011 which effectively raided pensioners' hard earned savings. The Government also introduced measures in budget 2013 that abolished or reduced household benefits. It was effectively a way of getting at private pensioners' earnings. I call for this to be abolished in the forthcoming budget.

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