Paul Murphy (Dublin South West, Solidarity)

I thank all colleagues in all the Opposition parties who supported our Bill. I just point out that we will finish ten minutes early. The reason is that the Members of the Lowry group who fought so hard to get their time to speak on these matters presumably do not consider it important to come and speak about trade union rights or maybe they are embarrassed because they will be voting against trade union rights later on today.

I agree with one thing the Minister of State, Deputy Smyth, said in her response, namely, that the "approach set out in this Bill would undermine the voluntarist approach to industrial relations that has existed down through the decades". That is correct and is precisely the point of the Bill, because the voluntarist system of industrial relations that has existed through decades is one that has worked in the interests of employers, not in the interests of workers.

The Minister of State, Deputy Dillon, in the opening statement set out what he said were compelling reasons for the Government's opposition to this Bill. Effectively two were mentioned. First was the suggestion we often get in this place that it is unconstitutional and second was the reference to how great the voluntarist system is. In response to the suggestion that it is unconstitutional, Deputies Lawlor and Gibney addressed this point very well. This is a paper tiger that the Government hides behind to avoid acting. There is no basis or relevant rulings to suggest it will be unconstitutional. Compelling cases were made by Deputies Lawlor and Gibney. I want to add to that something the Minister of State, Deputy Smyth, said at the end when she spoke about rights that are "guaranteed in a number of international instruments the State has ratified and which it is, therefore, bound to uphold under international law." I draw attention to the European Convention on Human Rights and a decision in Demir and Baykara v. Turkey in the European Court of Human Rights which has enormous relevance here. Up until that case, the European Court of Human Rights had effectively held that the right of workers to bargain collectively did not constitute an inherent element of freedom of association. The European Court of Human Rights had a similar position to the Government, which is that workers have the constitutional right or the right protected under the European Convention to join a trade union but that does not imply that the employer is compelled to negotiate with workers collectively. However, that court decision changed things. I am quoting here from a very important pamphlet from Daryl D'Art. A human right, the court held, must be interpreted "in a manner that renders the right practical and effective not theoretical and illusory". Consequently the court concluded "the right to bargain collectively with the employer had become an essential element of freedom of association."

A year later, Demir was cited in another unanimous decision of the European Court of Human Rights upholding the right to union recognition and collective bargaining as integral to freedom of association. The way the Government is suggesting the right to freedom of association is protected is now effectively being characterised by the European Court of Human Rights as theoretical and illusory, lacking in legal validity.

There is already legislation which compels duties of consultation and recognition on employers - the Universities Act 1997, the Education Act 1998, the Institutes of Technology Act 2006 and the Railways Acts 1924 and 1933 - which have not been challenged on their constitutionality. It is not true that this would be unconstitutional.

On the idea that the long-standing voluntarist system has served us well over the decades, it was quite revealing that the Minister of State, Deputy Dillon, stated the following: "A strong and well-functioning collective bargaining system [which we do not have, by the way] supports productivity and fair wages, especially in low-paid sectors". The voluntarist model, whereby employers are able to accept that workers - all workers - have joined the union but the employer does have to deal with them, works for employers in low-paid sectors. It is part of the reason we have, relative to other European countries, the highest incidence of low pay. It is why we have such high rates of precarity. It is why we have fewer rights than workers in other European countries. That is facilitated by the Government's anti-union practice which is clouded in the language of voluntarism.

The Government's language on the adequate minimum wages directive is interesting. It has now said that there is no obligation on member states to reach any prescribed level of collective bargaining coverage within any defined timeframe. The Government has signed up to a directive requiring it to prepare an action plan to increase collective bargaining coverage to 80% - by the way the best way to do that is clearly by increasing union density and union membership - but then the Government says, "Don't worry; we don't actually have to reach that by any defined timeframe". This means it is signing up to it in the knowledge that we never actually have to do anything about it. It is quite revealing in that it reveals why the Government continues to drag its feet on it.

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